be) 1z)3) 04 ra] 1arg DLS 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. sy ; 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 would have received under the award if otherwise he was enticiled to paynens of wablasy sox those tneee days. tne claimant commenced these preceedings under sec.119 of the Act by which he is seeking that a penalty be imposed upon the respondent claiming that the respondent, in breacn 2. 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. 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 23 October 1978, as follows: : "EQUAL HOLIDAYS CAMPAIGN Branches will note from the A.B.E.U./C.B.O.A. Joint Committee circular (23/10/78) that the Joint Committee has decided to authorise 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 over- whelming support from members for this line of action. Country members of A.B.E.U. are therefore instructed to:- FROM WEDNESDAY 25th OCTOBER 1978 ( AOD wULihsbSieOy. Gr ALL § COMe ri PICE INLERNAL RETURNS. BAN ALI COLLECTION OF BANK FEES AND CHARGES, 3. BANS TO REMAIN IN FORCE UNTIL FURTHER NOTICE FROM JOINT COMMITTEE. _ 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. The aim of this campaign is now to obtain equal leave for all Bank employees on whatever basis possible." , 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 26 October, Friday 27 October and Monday 30 October. On Monday 30 October a circular letter dated 27 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: "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, 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; - staff are not entitled to be paid for "any period of time they are not prepared to carry out their full time duties. - salary adjustments are to be manually calculated and salary slips amended accordingly. oO sala edged . : wares submitted at the end of the week (i.e. Friday) in order that Group certificate records may be correspondingly adjusted". 4. The procedures to be followed in relation to industrial action by members of staff of the respondent were set out in the attachrent 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 It is recognised 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. 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 ali 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) (c) (d) fe) (£) (g) (h) 5. In the event of any Manager electing to participate in industrial action involving absence from work or refusal to carry out his duties/responsibilities, State Managers Office must be informed immediately such decision is taken by the Manager. . 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. 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. 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 circun-~- stances 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. Manager, or in his absence the next available most senior officer, is to ensure that a fuil 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 result- ing actions of the officer (e.g. refusal to leave the premises etc.) are to be recorded therein. 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 full duties, they will be gn on and commence work at time to re: permicucd that time. The Bank will exercise its right to refuse 6. 6.0 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/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." 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 i action, absence from work and refusal to perform any or all or portion of the duties allotted to an officer. 'On Monday 30 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 31 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. 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 Mee aneger of the respondent. A conversation Of the State took place between the claimant and the Manager, the substances of which was reduced to writing by the Manager and signed by the Manager and the claimant as being a true report of "7. the conversation, The report reads: "Interview 9.00 31/10/78. Again discussed work requirements with Mr. R. Gapes who after further 'reference to union, refused.iio leave the premises as requested and demanded to be allowed to work in terms of A.B.E.U. bans. We was informed that he may therefore resume duties, but in terms of S/M/L 27/10/78 - State managers 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 31 October, and Wednesday 1 November, but on the second day the combination to the safe was returned to the claimant. 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. On''the morning of Thursday 2 November the claimant received his pay cheque for the previous fortnight. Although he received paymmant of salary for each of the days 26, 27 and 30 October he received no payment of salary or the days 31 October or 1 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 3 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 3 November. By a memorandum of agreement entered into between the claimant and respondent and dated 12 October 1971 the claimant agreed to perform all duties and tasks "which may devolve upon him or which any authorised officer may entrust to him or reguest him to perform", The duties which the wid be porfe ns a2 8. Gebebor, L November &: 3 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 "8. letter dated 27 October 1978. 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 clauses 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 x1 261 x 1 x 40 " 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. 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 Sconstitiied a breach of th. Award. 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 9. 9. clearly in the judgments 'in Amalgamated Collieries of W.A. Ltd v. True (1937) 59 C.L.R. 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 W.A. Ltd.. £1940] A.C. 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 at p.423-424 - "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 ina unanimous judgment of this court in Mallinson v. Scottish Australian Investment 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 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", 10. 10, 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 [19773 V-R. 87. In that case, an employee airline pilot; in support of an industrial campaign being conducted by the organisation 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 organisation 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 hiw and claiming damages for breach of contract. The Full Court of the Supreme Court of Victoria (Young C.J., Menhennitt and Griffith Jd.) 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 at p.91: "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, £19163 1.K.B. 57 at p.74, Nowhowever, such a pleading or averment is to be Te tobe. nee R.S.C.,0.19,r.14, and Gates v. Jacobs 9203 1 Ch. 567. The effect oi the rule is "che " 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 plaintifs is _Yeady, willing and able to eee : coniroot. But when a defender OCS ¥ ~ bY hag pleading a question i the plaintif£et in an action for breach of contract was ready ox: willing to perform the contract, the burden of proving readiness and willingness rests upon the plaintiff." ll. 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. At p. 92 the Court said: "The question whether a particular emplovece 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 employnent if ariother 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 imnths 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 mustdepend upon all the circumstances, including the nature of the employment and the terms of the contract of employment." At pp. 93-94 the Court said: "In these circumstances the plaintiff failed to show in ovr 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." 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 coift a. 7 C breach of th work done in the course of his Guployment. jin Austral2an National Nixlines Conm prea ae nn eee 8 sJon v. Robinson; supra, the Court 12. said at p. '12, 96; Uj -, "IE, 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 acticn 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 Pire Sprinklers Pty. Ltd. v. Watson (1946) 72 G.LTRY 435, especially per Latham €.J. at pp.450-2, per Starke J, at pp.461-2 and per Dixon J. at "pp. 463-6", '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 guestion 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, supra. At pp.463-464 His Honour said: "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, perhepns, 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 soiciy 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 the Paster to po: Sobek poe 38 enouge Lo 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 3 r 13. relation of master and servant ceases, or the things or services are not provided." At p. 465 His Honour said: : "A contract for the establishment of the relation of master -and servant falls into the same general category os agreements to pay in respect of the consideration when and so often as it is e: ecuted, and is, there fore, commonly understood as involving no liability for wayes or salary unless earned by service, even though the failure to serve is a consequence of the master's wrongful act. 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_ Bovenas Conn sehoncrs v. Duke of Westminster (1936) A.c.1. "But to say the Teast, it is coe 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 reaéy 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." At p. 466 His Honour said: "Some difficulty has been felt in saying what is the service which carries wages. he 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. Trey also serve who oniy 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 disentitie 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 atks : Poceh of ocr v If the responce nt, on being informed by the claimant that he would not perform all his duties 14. 14, to hin, had refused to allow him 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 categorised as not be ing ready and willing to perform the contract of employment or as not amounting to actual performance of the work, In The Electricity Commis sSion of New ~South Wales ve The Federated EB ne Drivers and Firemen's ~Association of Australasia (N.S .W.)\ rer Svieringa the re ta an ene = ae a, Industrial Commission of N,S,W, in Court Session (McKeon, Cahill and Dey JJ,) 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 work place but was not provided with work, At p,17 of the reasons for judgment dated 2 July 1975 but not yet reported, 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 employnent prescribe, an employee must be ready and willing and able to perform in accordance with the lawful and reasonable directions of his employer the sexvice for which he \ contracted, and that ary 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 s for the remainder of the own action, and the non-payment of wages whic followed was because of that' disentitlement ana not by reason of any other cause In our opinion, the Electricity Commigsion was not obliged to 15. 15. pay Mr, Swieringa for any time of his rostered shift on Monday, 17th February, 1975, after the time he first refused to carry ovt the n guty required of him," 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, supra, 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 the N.S.W. 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 worksa right to do 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, 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. In my opinion, the respondent did not agree to the variation of the terms of the contract of employment The attaciisent to the circular letiur stated that under no circumstances were any attempts to be made by other employees of the respondent to forcibly 'eject officers' who refused to , 16. 16. leave the premises, paragraph 2(e). Likewise paragraph 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 31 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 diswissal 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. 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, clause 26 made the salary specified in clause 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 clause 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. Clauses 6 and 7 of the Award prescribe an entitiement 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 oohe maid on a : er Doelocchtiy bas epiion of the respondent. Clause 1l2(c) conters a privilege upon the respondent to make deductions when an employee is absent from duty without the consent of the Bank during the 17. 17, period in xespect ef which the salary is paid, Clause 31, ts "Salary Deductions", confers a right on an employer to make deductions from salary for guarantee, provident or similar funds, - The opening words of clause 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 authorise 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 clause 12(a) of the Award, Apparently the claimant makes no claim with respect to the deduction of salary referable to Thursday 2 November being the day the claimant went to Melbourne and thus was absent from duty within the meaning of clause 12(c) Counsel for the respondent submitted that in clause 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 In re Alice Alderson. Ex Parte Jackson {1895} 1.Q.B. 183 where Vaughan Williams J, hele that in order to come within sec, 4 of the Bankruptcy Act 1882 which constituted an act of bankruptcy where a debtor, with certain intent, "abo7on himself", a debtor need not absent himself from any particula: place by physical bodily absence, He relied also on The Workers Federation of Australia Veo Commonwealth Steamship Owners Association and-Ors (1945) 55 C.A.R,. 603 where Piper C.d. held that under a Waterside Workers' Award, employees were no entitled to payment of wages when they were in "attendance" but refused to perform their duties. 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 clause to physical bodily absence from duties, The Award makes provision for payment of salary when the employee is not , 18, 18, present at his place of duty and not performing his normal duties e.g. clause 24, "Annual Leave", and clause 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 clauses 6,7 and 26 does not confer a right on the claimant to payment of salary for those Gays, 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 hoing 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 clause J]2(c). Where clause 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 G@ifficult 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. t The criminal onus applies, Vehicle Builders Employers' Federation v. General Motors Holden Pty. Ltd. (1977) 18 ALR 654, but in the uv the recult would be the same if the civil onus war Presence Cee appiicable. In my opinion the claimant has failed to prove that the respondent was under a duty to pay salary to 19. ; 19, 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 Officers' (Federal) (1963) Award and accordingly the application is dismissed. I certify that this and the lf rue cony of the preceding pases ave @ t Reasons for Judgment herein or bis Honour Mr. Justice Vorcheop , ASSOC Yate Dated: (Ph tAevek, (477.