192) Se CATCHWORDS Industrial Law - Conciliation and Arbitration Act 1904 - interpretation of an Award - whether employer has power to direct an employee when to take ameal break - relationship between Award and contract of employment. Conciliation and Arbitration Act 1904 5.110, s.118C, s.119 AUS I NEW BANKING GROUP LIMITED and OTHERS and AUS' YEES' UNIO. V. No. 216 of 1987 NORTHROP, GRAY AND RYAN JJ. 15 APRIL 1988 MELBOURNE N co AU A Vv 0 s TRY 1. I DIviIst V No. 216 of 1987 BETWEEN : US A NG GROUP LIMITED, TION. s BANK and TPAC ING CORPORATION Applicants and AU: IAN LOYEES' UNION Respondent COURT: NORTHROP, GRAY AND RYAN JJ. DATE : 15 APRIL 1988 PLACE: MELBOURNE MINUTES OF ORDER THE COURT ORDERS that the application be dismissed. (Settlement and entry of Orders is dealt with in 0.36 of the Federal Court Rules) IN_THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. No. 216 of 1987 ) SNDUSTRIAL DIVISION ) BETWEEN : ING GROUP ' NATIONAL AUSTRALIA BANK LIMITED and PO: 0 Applicants and LO ' UNION Respondent COURT: NORTHROP, GRAY AND RYAN JJ. DATE : 15 APRIL 1988 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: Each of the applicants carries on the business of banking in Australia. Each is a party to, and therefore bound by, the Bank Officials' (Federal) (1963) Award ("the Award"), an award made under the Conciliation and Arbitration Act 1904 ("the Act"). Other companies carrying on the business of banking in Australia are parties to the Award. They have been given an opportunity of being heard by the Court with respect to the application, but have not appeared. The respondent ("the Union") is an organization of employees under the Act. It is a party to the Award and thus it and its members are bound by the Award. Each of the applicants employs at numerous offices and banks throughout Australia persons who are members of the Union. Each of those employees is employed under a written contract of employment with the employing bank. None of those written contracts is before the Court. The Award prescribes conditions of employment with respect to each of the applicants and i1ts employees being bank officers as defined in the Award. For the purpose of this application, Clause 12, Payment of Salaries, and Clause 20, Hours, are of importance. Reference will be made to the relevant parts of those clauses later in these reasons. During the period from the month of November 1986 to the month of September 1987, disputes arose between each of the applicants and bank officers employed by them in relation to the manner in which the bank officers performed work allotted to them. During that period, bank officers refused to work or did not work when they were required to work and worked during periods when they were not required to work. Each of the applicants deducted, as they contend they were entitled to do under the Award, amounts from the salary or wages otherwise due to the bank officers, for periods when the bank officers refused to work or did not work when required to do so. Thereafter, the Union caused to be issued just under 200 separate applications in this Court alleging that the applicants had committed breaches of the Award in that they had not observed the requirements of Clause 12 of the Award, and sought the imposition penalties under 5.119 of =e the Act. An issue arose between the applicants and the Union. The applicants contended that, under Clause 20 of the Award, each bank had the right or power to direct when a bank officer employed by it should take a meal break, while the Union contended that each bank officer had the right or power to elect at which time the meal break should be taken provided it came within the spread of hours prescribed by Clause 20. As a result, the applicants commenced these proceedings under s.110 of the Act seeking an interpretation of the Award. The Court, on the application of the applicants, ordered under 5.118C of the Act, that the proceedings be heard and determined by a Full Court. On 1 February 1988, the Court constituted by Northrop J., gave reasons for making that order. Clause 20 of the Award is headed "Hours" and the relevant parts of that clause are set out:- "(a) Ordinary hours shall be worked on the basis of a nineteen day four week cycle of 152 hours. The ordinary hours in any week shall not exceed 40 exclusive of meal breaks. ... (b) In any one day the ordinary hours of work shall not exceed 9 hours 30 minutes exclusive of meal times. (c) The meal time shall be of not less than 45 minutes duration, to be taken between 11.30 a.m. and 2.00 p.m. on working days. ... ."" The clause does not prescribe a spread of hours within which the work is to be done but Clause 20A makes provision for shift work and Clause 21 makes provision for overtime. However, those provisions do not assist in the construction of Clause 20. Clause 12 of the Award is headed "Payment of Salaries." Under sub-clause 12(c), an employer is empowered, in the circumstances prescribed, to make deductions from the salary of an employee. That sub-clause is set out:- ""(c) Notwithstanding anything elsewhere contained in this Award the Sank 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 38" The application of that formula converts the annual salary to an hourly rate. The applicants commenced these proceedings seeking the proper interpretation of Clauses 20 and 12 of the Award in the light of the following contentions: - "6. The Applicants contend that on the proper construction of the Award and in circumstances where:- (a) an employee is directed by an Applicant at what time to take a meal time between 11.30 a.m. and 2.00 p.m. on ai working day, and (b) the employee takes a meal time at a time Flowing from those contentions, the applicants are seeking different than the time so directed, the Applicant concerned is entitled to consider the employee to have been absent from duty without the consent of the Applicant and to make a deduction from the salary of that employee for each hour or part of an hour for which such employee has been absent from duty without the consent of the Applicant. ... Further the Applicants contend that on the proper construction of the Award and in circumstances where: (a) an employee is absent from duty without the consent of an Applicant, (Db) commences to work through what would otherwise have been that employee's meal time for that working day in order to make up the time during which he or she Was so absent, and (c) the Applicant directs the employee not to work through what would otherwise have been that employee's meal time for that working day, the Applicant concerned is entitled to make a deduction from the salary of such employee in respect of every hour or part of an hour for which such employee has been absent from duty without the consent of the Applicant." the following interpretation of the Award namely that:- "(a) (b) on the proper construction of Clause 20(c) of the Bank Officials (Federal) (1963) Award a Bank bound by the Award has the right to determine when an employee will have a_ meal time on a working day provided the meal time falls between 11.30 a.m. and 2.00 p.m.; on the proper construction of Clause 12(c) of the Bank Officials (Federal) (1963) Award when an employee takes a meal time at a time other thah as determined by a Bank, such employee is absent from duty without the consent of the Bank, and the Bank is entitled to make a deduction from the salary of such employee in respect of every hour or part of an hour for which an employee is so absent; (c) on the proper construction of Clause 12 of the Bank Officials (Federal) (1963) Award an employee, who is absent from duty at any time on a working day, other than at a time determined by the Bank concerned, is absent from duty without the consent of the Bank and the Bank is entitled to make a deduction from the salary of such employee in respect of every hour or part of an hour for which the employee is so absent whether or not the employee commences to work through what would otherwise have been that employee's meal time for that working day in order to make up the time during which he or she was so absent and whether or not the Bank directs the employee not to work through what would otherwise have been that employee's meal time for that working day." The Union disputes that construction and contends that on the proper interpretation of the Award, each employee has the power to determine when to take a meal break under sub-clause 20(c). The submission made on behalf of the applicants is based on the assumption that each bank has the power to direct its employees what work todo and, incidentally to that power, is entitled to direct each employee at what time to take a meal break within the spread of hours prescribed by sub-clause 20(c) of the Award. Any power of an employer to direct its employees as to what work to do and when to take a meal break must arise from the contract of employment entered into between the employer and employee. In the present case, the existence and extent of that power depends upon the written contracts entered into between each bank and each of its employees. In the absence of written terms, the power might arise by implication or by inference; for example, from a course of conduct between the parties to the contract of employment. The Award operates upon the contracts entered into between each bank and its employees. In these circumstances, Clause 20 of the Award is not directed to the question of who has the power to decide when a meal break is to be taken. In this respect, Clause 20 is neutral. It prescribes that a meal break of a certain minimum duration must be taken, and allowed, within the spread of hours specified but is silent on the question of who decides when the meal break is to be taken or what its duration is to he. In truth, what the applicants are seeking is the construction of the contracts of employment between each of the banks and its employees. This cannot be done under the guise of an application pursuant to 8.110 of the Act. In the circumstances, the contentions of the applicants and the Union must fail. The application should be dismissed. preceding pages are a true copy of the Reesons for Judgment herein of the Heneueblexiianducies Full Court Sharot F Luo Associate | I certify that this and the six (6) | Dated: \S prt 19e2 a4. Title of Action File Number Date of Hearing Judgment Delivered Counsel for Applicants Solicitors for Applicants: Counsel for Respondent =: Solicitors for Respondent: Signed .Shau. f. Aduaa Date 15 April 19888 GROUP LIMITED and OTHERS v. AUSTRALIAN BANK EMPLOYEES' UNION Vv. No. 216 of 1987 3 March 1988 15 April 1988 Mr A. Goldberg Q.C. with Mr F. Turner La Messrs. Freehill, Hollingdale and Page Mr J. Shaw Q.C. with Mr B. Hinkley Messrs Maurice Blackburn and Co.