Federal COURT OF AUSTRALIA INDUSTRIAL LAW - Alleged Breach of Award - Non-payment of Wages - whether refusal of lawful and reasonable instruction - whether waiver of rejection of part-performance. Industrial Relations Act 1988 (now Workplace Relations Act 1996) - s 178 Alcoa of Australia (Western Australia) Award 1982 Gapes v Commercial Bank of Australia Ltd(1980) 37 ALR 20. Spotless Catering Services Pty Ltd v FLAIEU(1988) 25 IR 255. Csomore v Public Service Board(1986) 10 NSWLR 587. COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA -v- ALCOA OF AUSTRALIA WI 1481 of 1996 R.D. FARRELL JR 6 JULY 1998 PERTH IN THE Federal COURT OF AUSTRALIA western australia DISTRICT REGISTRY WI 1481 of 1996 BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AND: ALCOA OF AUSTRALIA COURT: R.D. FARRELL JR DATE OF ORDER: 2 JULY 1998 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE Federal COURT OF AUSTRALIA western australia DISTRICT REGISTRY WI 1481 of 1996 BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AND: ALCOA OF AUSTRALIA court: rd farrell jr DATE: 6 July 1998 PLACE: perth REASONS FOR DECISION This is an application under Section 178 of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 ("the Act"). It arises from an alleged failure by the employer, Alcoa of Australia ("Alcoa"), to pay one of its employees, Mr Andrew Cattermole, an amount in wages allegedly required to be paid under an award. The Statutory and Award Background The application was commenced in the Industrial Relations Court of Australia. It was set down for hearing in that Court in May 1997, before the jurisdiction to hear and determine applications under Section 178 was transferred under amendments to the Act to the Federal Court of Australia. A request by the applicant for an adjournment was granted at the beginning of the hearing. When the matter came on again for hearing, on a date after the nominated transfer date, it was heard by the Federal Court of Australia. Subsections 178(1) and (6) of the Act relevantly provide that: "(1) ...where ...(a) person bound by an award or order of the Commission breaches a term of the award or order, a penalty may be imposed by the Court or,,, by a court of competent jurisdiction." "(6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under the award or order, the court may order the employer to pay to the employee the amount of the underpayment." The applicant is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Engineering and Electrical Division, W.A. Branch, ("the Union"), of which Mr Cattermole, who worked at the relevant time as a electrical and instrument fitter for Alcoa, is a member. Alcoa is in the business of refining of alumina. As a fitter, Mr Cattermole was part of the team whose duties included the maintenance of plant and machinery required to maintain production. The Union contends that Alcoa has breached clauses 7 and 8 of the Alcoa of Australia (WA) Award 1982 ("the Award"). Clause 7 of the Award relevantly provides that "all wages shall be paid fortnightly...", while Clause 8 prescribes the rate of the weekly wage to be paid for ordinary hours worked by employees in the specified classifications, and details various allowances. It was agreed between the parties that the rate relevant to Mr Cattermole was $19.65 per hour. The alleged underpayment resulted from Alcoa's decision to dock Mr Cattermole's wages for thirteen hours in which he was regarded by Alcoa as having "stood himself down" by allegedly refusing on two occasions to comply with the lawful and reasonable orders of his acting-foreman, Mr Bob Odgers. The alleged underpayment amounts to $255.45, and the union therefore seeks the sum of $255.45 plus interest. It no longer seeks to have a penalty imposed upon Alcoa. Alcoa, for its part, relies upon paragraphs (b) and (c) of Clause 6 of the Award, which provide: "(b) An employee shall perform such work as the Company may, from time to time, reasonably require. (c) An employee not attending for duty shall, except as provided in clauses 20, 21, 22 and 23 of this award [which provide for public holidays and various types of leave], lose his pay for the actual time of such non-attendance." The Union bears the onus of proving that the award was breached. The Industrial Context The relevant events took place in 1994 during a period of industrial disputation surrounding the renegotiation of an enterprise bargain between Alcoa and its employees. In late August 1994, the Union had notified Alcoa in accordance with the then Industrial Relations Act 1988 of the intention of its members to take protected industrial action in support of their claims. In response, Alcoa notified the Union of its intention to "lock out" employees who participated in such industrial action, as was also contemplated by the Industrial Relations Act 1988. In the context of the negotiations, the Union and its members also imposed various "black-bans" from time to time on particular members of management and on particular activities. It was conceded by the Union, that at the relevant time, Mr Odgers was the subject of such a ban. In the preceding years, and particularly since the negotiation of the previous enterprise agreement, the Electrical and Instrument Maintenance section, in which Mr Cattermole worked, had increasingly been moving towards an autonomous system of work, with the fitters scheduling incoming work for themselves. The fitters would usually learn about the jobs to be done directly from the production employees affected, either by way telephone, visits by production employees to the workshop or by computer message. The fitters would then allocate and prioritize the work among themselves. Resort was only had to the foremen when issues of unusual complexity arose. The move to greater autonomy had been considered a success during the life of the enterprise agreement. However, it seems that during the bargaining period which followed, Alcoa's management formed the perception that the employees were no longer exercising their autonomy in good faith, but were instead deliberately failing to give priority to jobs which management considered urgent. This urgency was based on management's belief that the failure to complete the jobs promptly would potentially result in a loss of production. Management therefore decided to revert to a command and control relationship between the foremen and their employees, shifting the role of prioritizing and allocating jobs back to the foremen. To that end, for example, the computer system was altered, so that the fitters were unable to access it independently to find jobs for themselves. There was a suggestion in the Union's submissions that the foremen were no longer entitled to exercise that role, and no longer had the authority to issue orders to the fitters. This suggestion was not, however, supported by the evidence. Many of the witnesses accepted that, while it was not the usual practice, the foremen could still make final decisions on priorities. It being a usual feature of employment relationships that the employer can ultimately control the work, it would have required cogent evidence to persuade me of the alternative. The Instructions While knowledge of this industrial context is useful in order to understand some of the actions of the individuals involved, whether there was a breach of the award in this case depends upon the particular interactions between Mr Cattermole and his foreman at the relevant times. Their interactions can be summarised as follows. At about 8:00 am on Monday 7 November 1994, about an hour after the beginning of the working day, Mr Odgers approached Mr Cattermole in the main workshop with a job. Mr Cattermole's response was regarded by Mr Odgers as a refusal to perform the job. Mr Cattermole instead performed other work. As a result of Mr Cattermole's perceived failure to perform the work required of him by Mr Odgers, Mr Cattermole was only paid for the first hour of that day. A similar incident occurred at about lunchtime on Wednesday 9 November 1994. Mr Odgers again regarded Mr Cattermole as having refused to perform a job. Mr Cattermole again performed other work instead, and on that day was paid for only the first five hours of his eight hour day. Of those directly involved in the events, Mr Odgers and Mr Cattermole gave evidence. So did Mr Ivan Perry, a clerk who had been asked to accompany Mr Odgers to witness his discussion with Mr Cattermole on the Monday. Another employee, Mr Peter Dobson, was said to have similarly witnessed Mr Odgers' discussions on the Wednesday, but was unable to give evidence as he was on leave in China during the adjourned hearing dates. I also heard evidence from Mr Ian Jackson and Mr James Smith, who worked with Mr Cattermole and who had similar discussions with Mr Odgers. It is fair to say that much of the evidence was vague, contradictory and confused. Given that almost three years had elapsed between the events and the hearings, and few contemporaneous notes were taken, the differences in the evidence are, in my view, adequately explained as differences in recollection. There was no basis for me to conclude that any of the witnesses was giving other than an honest recollection of events to the best of their ability. I have had to make findings of fact resolving the differences in the evidence. I will now consider the evidence in more detail and recount those findings, and will deal also with the issues arising from them. Mr Odgers was not usually Mr Cattermole's foreman; his usual position was as maintenance planner. He had taken over in an acting capacity while the usual workshop foreman, Mr Gerry Mathews, was on leave. Mr Odgers had relieved Mr Mathews on previous occasions. I accept that as acting foreman Mr Odgers had the same actual authority to direct Mr Cattermole as Mr Mathews would have had. A document was tendered suggesting another employee had been given Mr Mathew's responsibilities, but I accept that that document related only to a particular roster and not to Mr Mathew's responsibilities as foreman. There was some question as to whether Mr Cattermole was aware of Mr Odgers' status as acting foreman at the relevant time, given that it seems no formal notice was circulated to announce the fact, as sometimes happened. Even apart from my specific findings concerning the dialogues between them, I find on balance that Mr Cattermole was aware of Mr Odgers' acting role at the time of the incident. Had there been any question in Mr Cattermole's mind as to Mr Odgers' authority, one might have expected him to have raised it during their discussions. On the Monday morning, Mr Cattermole and his colleague, Mr Jackson, were at their benches in the workshop kitted up in their protective equipment and about to go to the administration block to continue the task they had been performing over previous weeks. The task had been allocated to Mr Cattermole some weeks before by his usual foreman, Mr Mathews, and involved replacing PCB capacitors in the administration block. The previous year, a capacitor had exploded, and Mr Cattermole was, with a series of fellow employees, implementing a program of replacement. The replacement program was instituted to improve the occupational health and safety of employees in the administration block, in recognition of the carcinogenic risks arising from contact with PCBs. Mr Cattermole had worked consistently on the replacement program over the previous weeks, and a system was in place so that the relevant employees in the administrative block were given notice of the need to vacate their offices at the time when the capacitors in their office was scheduled to be replaced. Accordingly, administration block employees would have made arrangements to vacate their offices that day in accordance with the day's replacement schedule. That morning Mr Odgers had decided that Alcoa needed a specific job done which had not been given priority by the maintenance employees. The decision was probably in consultation with Mr Kevin Riding and Mr Rod Love, the maintenance supervisors to whom Mr Odgers reported. Mr Odgers can no longer recall what the job was, not having made a note of it at the time. His best recollection is that it was a piece of equipment that was out of service, such as a lathe or a crane. He does not believe it was a "safety job". It was decided that he would approach employees in the workshop and direct them to do the job. Mr Odgers anticipated that he might face some problems; this is understandable given the employees' general adoption of autonomous work practices and the specific black-ban on Mr Odgers. Mr Riding or Mr Love had provided him with a one page type-written document entitled "Refusal Statement". The document was prepared to give the foremen a script to be used when notifying their employees of the consequences of refusing to perform work the foremen had allocated to them. Mr Odgers had the document ready in his shirt pocket. Mr Odgers also organised that Mr Perry be present as a witness to what was said, and ensured that Mr Perry also had a copy of the document. Mr Odgers approached the employees in the workshop. He is not sure, but believes Mr Cattermole may have been the first person he approached. Mr Jackson believes that he was the first to be approached. In any event, when Mr Odgers approached Mr Cattermole, he told Mr Cattermole he wanted him to go and attend to a priority job. There was considerable dispute over exactly what was said during this exchange. Mr Odgers' reconstruction, in cross-examination, of the nature, if not the exact content, of their conversation was as follows: "I would have gone to Andrew and said: Andrew I'd like you to slip down into the mechanical workshop and have a look at the crane in the centre - the building crane, it's not working. His response to that would have been: I've got a job already and it's a priority job - and my response to that was: well, that job can wait for an hour or two. I want you to stop doing that job and attend to the crane because it's holding up the workshop fitters. His response to me would have been that: I'm going to continue working on the capacitors in the admin building because that's the job that I've been given before - and I said to him: well, the priority has changed and I want you to do the job I'm asking you. He would have said: well, I've got my job... And then I would have said to him that I have to read from this piece of paper that I've been given... I read it verbatim from that piece of paper..." It is likely, based on the evidence of the employees, that at some stage Mr Odgers also made reference to the proposition that Mr Cattermole was "standing himself down". The formal statement Mr Odgers says he read out verbatim was as follows: "Refusal Statement Because you are not accepting a lawful instruction from me, your appointed foreman you have chosen to go on strike and you will not be paid, until such time as you come back and inform me that you will accept instruction from me. While you are on this site you must proceed to the crib room. If you choose not to we must inform you that you are not legally at work doing what the company is instructing you to do and therefore are not covered by workers compensation." Mr Odgers says he then moved on to the next employee in the workshop, and asked them to attend to the priority job, following the same process, and so on until there were no employees left to ask. He then left the workshop. Mr Cattermole gave evidence of a much shorter exchange. He says that Mr Odgers came up to him with a piece of paper in his hand and said "Can you do this job?", or perhaps "I've got a job for you in the workshop". He says Mr Odgers did not specify the job. Mr Cattermole responded, "I can't, I'm already in the middle of another job." Mr Odgers then looked down at the piece of paper and said "You are not following a legal directive. Therefore, you're standing yourself down". Mr Cattermole merely replied "No, I'm not" and went out to continue to do the PCB removal job, leaving Mr Odgers to go on to the next employee. As Mr Cattermole observed, "...he spoke to me once, I spoke back to him and he read this thing out. So it wasn't a real conversation..." On the balance of the evidence I find that it was Mr Perry who accompanied Mr Odgers on the Monday. He recalls the time as being morning tea time or lunch time, which might have suggested he attended on the Wednesday. However, the preponderance of the other witnesses' evidence suggests he attended on the Monday. Mr Perry's evidence was more vague than most. He says he was nervous and embarrassed at the time, as he had a good relationship with the employees in the workshop, and he and Mr Odgers had been greeted with cat-calls when they came into the workshop. He recalls that the employees had gathered around as Mr Odgers began the process of seeking to direct the first employee to attend to a job. The single matter of which he is certain is that Mr Odgers read out the refusal statement verbatim; the verification of that fact was Mr Perry's sole reason for being there. He only recalls Mr Odgers approaching one person to read out the refusal statement. However, given that the other witnesses' recollections support the proposition that Mr Odgers approached a series of employees on each occasion, I have preferred their evidence on this point. One difference in the accounts is whether Mr Odgers specified the job he wished Mr Cattermole to do. Mr Jackson was one of the employees approached on the Monday. He recalls that Mr Odgers asked him to fix the stove in the canteen. Mr Odgers accepts that this might have been the priority job he wanted done, because without the canteen stove working, Alcoa had problems with not being able to supply meals. If Mr Odgers specified the job to Mr Jackson, there is no reason why he would not have specified the job to Mr Cattermole. It may be that, if the employees had gathered around the first conversation, as Mr Perry suggests, then Mr Odgers proceeded on the assumption that they had all overheard and knew what the job was. Given the onus of proof, I accept on balance that the job was specified on each occasion. The content of the "refusal statement" document read out by Mr Odgers is also in dispute on the evidence. It seems clear that Mr Odgers referred to a document, a copy of which he had provided to Mr Perry in advance. I accept that he read the terms of the document exactly as it was written. A document was tendered into evidence, the text of which I have set out earlier. Mr Odgers believes it is the same document, and remembers some specific parts of it, but not all of it. Mr Perry cannot recall for certain whether the document in evidence is the document which was read, though he said it seemed much as he remembered it and "the message is the same". Mr Odgers recalls that the previous week, some earlier versions of the refusal statement had been used by other foremen, but says he was given the tendered version, which was the final version, on the Monday. Both Mr Jackson and Mr Smith suggested that the document from which Mr Odgers read to them was hand-written. However, both Mr Odgers and Mr Perry are confident the document they read from was type-written. I prefer the evidence of Mr Odgers and Mr Perry; the employees, of course, would only have had a chance to glimpse the document. The recollections of the employees to whom the refusal statement was read differ from the text of the tendered document. Mr Cattermole is confident that if Mr Odgers had read the statement in the form set out above, advising, for example, that Mr Cattermole would not get paid, then he would have immediately consulted his shop steward. Similarly, if he had been advised that he was not covered by workers compensation, he would have regarded it as a relatively serious matter compared to merely being stood down. Mr Smith does not believe there was any reference in the statement read to him to the proposition that he was on strike, that he would not be paid or that he would not be covered by workers' compensation. Mr Jackson' recollection of the refusal statement is closest to the text of the tendered document; he recalls it as "you're standing yourself down, you're going on strike and go and sit in the crib room". He recalls nothing being said about pay. Mr Jackson suggested that the refusal statement read out by Mr Odgers on the Monday was only about "two lines" in length. However, his demeanour as he said this suggested some exaggeration in his evidence. The divergence of the evidence on this point is somewhat troubling. I could not, in my view, realistically accept the evidence of Mr Cattermole and his fellow employees unless I was prepared to accept that Mr Odgers and, to a lesser extent, Mr Perry, were not giving honest evidence of their recollections on the matter. Based in part on their demeanour as witnesses, I accept that Mr Odgers and Mr Perry were witnesses of truth. Their evidence was often unclear and vague, but I am satisfied that they did not pretend to be more certain of their evidence than they were. On the other hand, the employees were at a disadvantage in that they did not have the written words in front of them when the refusal statement was being read. To the extent that it is formal in its language, it was perhaps less likely to be remembered by them in detail than something said more naturally and colloquially. The exact terms of the statement may not have seemed important to them at the time, particularly if they were fixed upon their course of action regardless of what Mr Odgers said. The subsequent reviewing over time of their recollections together, perhaps, with innocent discussion between them, may have made their recollections more consistent and may have left them feeling more certain of their recollections. On the evidence before me, therefore, I accept on balance that the refusal statement was read out in the form of the tendered document. Given that the refusal statement was read, were the implications of the exchange with Mr Odgers grasped by Mr Cattermole? Mr Cattermole says he took being stood down to mean that he wouldn't be getting paid, and understood that if he told Mr Odgers he was prepared to do the job then he would be paid. He says he thought he would get paid eventually anyway. He explained that they had been told, presumably by their union representatives, that it would be sorted out when the whole industrial situation was sorted out, and that if they just carried on doing the job as normal, at the end of the dispute they would get paid. However, he disagreed with the proposition that he was being stood down, because he believed that being stood down involved his employer saying he was not allowed to work there and do his job, whereas he was continuing to do his job. I will return to that proposition below. Later in the morning, Mr Cattermole wrote a handwritten letter to Mr Odgers advising that he was in the middle of a safety job and intended to carry on with the job all day. He gave it to Mr Odgers and asked him to sign it. He left it with Mr Odgers, at Mr Odgers' request. When Mr Cattermole returned to enquire about it, Mr Odgers indicated that he would not sign it. Mr Cattermole says that in fact he found it the bin. Mr Odgers does not recall this exchange, and emphatically denies that he would have thrown such a letter in the bin. Given the industrial context, he believes he would have passed such a letter on for Mr Riding or Mr Love to consider. I accept that Mr Cattermole's evidence concerning the letter was not an invention, despite his failure to produce the letter. He had retrieved it and kept it for some time, before discarding it. On the same day, Mr Odgers approached Mr Cattermole in the workshop during the morning tea or lunch break and called him in to Mr Odgers' office to complete an accident form for a cut Mr Cattermole had sustained the previous week. When he came in, Mr Odgers said he was going to reinstate Mr Cattermole while he filled in the form. Mr Cattermole said "oh, so you're saying that I was stood down". Mr Riding, who was also in the office, responded "No, that's a bad choice of words". Again, Mr Odgers does not specifically recall this encounter, other than the fact that a form was signed at some stage. He does not rule out Mr Cattermole's account. Mr Riding did not give evidence; he has left Alcoa's employ. At the end of the day, in accordance with the usual practice, Mr Cattermole took all the removed capacitors, the disposable protective gear and anything that may contain PCB, placed them in a bag and left them in Mr Odgers' office with a list for auditing purposes showing the capacitors' details and original location. Mr Odgers, independently of his role as acting foreman, was also the PCB officer on site, and it was his responsibility to arrange for their disposal. Mr Cattermole resumed work on the morning of Tuesday 8 November 1996 and carried on replacing the PCB capacitors. He was not directed to perform any other task that day, and was paid for the entire day. The evidence concerning the events of Wednesday 9 November 1996 suggest the exchange between Mr Odgers and Mr Cattermole on that day was very similar to that on Monday. Witnesses often did not distinguish between the two exchanges. Mr Odgers infers from a very brief diary note that Mr Cattermole refused an instruction that lunchtime and was read the refusal statement. Mr Odgers has no real recollection of it as a distinct incident. Nor is Mr Cattermole's recollection distinct. The exchange occurred after Mr Cattermole's lunch break in the workshop at his bench, where he ate his lunch. He was working that day with Mr James Smith. Mr Odgers was accompanied on that occasion by Mr Dobson. There is nothing in the evidence to suggest that the exchange between Mr Odgers and Mr Cattermole deviated from the path it took on Monday 7 November 1994. Mr Cattermole says that at the end of the Wednesday he took the replaced capacitors into Mr Odgers' office, saying "These are for you, Bob". Mr Odgers thanked him and he left. Given these findings of fact, there are two remaining issues: First, did Mr Cattermole's reaction to Mr Odgers' approach amount to a refusal of his instruction. Secondly, if it did, did Alcoa's subsequent reaction to Mr Cattermole's continuing to do other work amount to a waiver of Alcoa's rejection of part-performance of his employment obligations. Was it a Refusal? Mr Cattermole emphasises the brevity of the exchanges, as he recalls them. While Mr Odgers' account of the nature of their conversations was somewhat lengthier, on neither account does there appear to have been much discussion between them with a view to persuading each other. It was suggested by the Union that Mr Odgers wrongly responded to Mr Cattermole's initial reaction to the proposed job as if it were a final refusal, when it should have been regarded as the beginning of a discussion or negotiation. Acceptance of such a submission would lead, however, to an undesirably artificial analysis of the situation. Mr Jackson's evidence provides a useful example. Mr Jackson says that he had been aware that the stove needed repairing, but that the necessary materials were not available. Also, he knew that at that time of the morning the stove would still be too hot to work on; there was no evidence that Mr Odgers or Mr Cattermole were aware of these matters. Mr Jackson declined to attend to the stove without telling Mr Odgers why. Mr Odgers read him the refusal statement. It is now suggested that, given the circumstances known to Mr Jackson, the instruction was unreasonable, and therefore he should be entitled to be paid notwithstanding his refusal to comply with it. Mr Jackson cannot, in my view, refuse an instruction on the grounds that it is unreasonable without having communicated to his foreman the reasons why he considers it unreasonable. To hold otherwise would tend to discourage necessary and appropriate levels of communication within the workplace. In any event, Mr Cattermole conceded in evidence that, if the job he was being directed to perform by Mr Odgers wasn't a safety job, he would not have done it. On his version of events, given that he believes the job was never specified, he was content to refuse to perform the job until such time as he was convinced its priority, in terms of safety, was greater than the PCB replacement job. Mr Cattermole, in one of his many accounts of their conversation, suggested that he had told Mr Odgers he was working on a "safety job". I am satisfied anyway that Mr Odgers was aware of the task on which Mr Cattermole was engaged, because he had been engaged in the task for some weeks, he was wearing his safety equipment and Mr Odgers had a role in the disposal of the replaced capacitors at the end of each day. It is likely that Mr Odgers would therefore been aware that it was a "safety job". While I accept that Alcoa's general policy is that safety takes priority over production, it seems self-evident that many safety concerns are not acute. They can therefore appropriately be addressed over a scheduled time-frame, without being the most urgent job at any given time. The PCB replacement program was such a job, and I accept that urgent production tasks would reasonably take priority over the program from time to time, provided the safety issues were being addressed over a reasonable period. Mr Cattermole's response to Mr Odgers' approach also implicitly relied upon the proposition that Mr Mathews' prior instruction that he perform the PCB replacement job prevailed over Mr Odgers' new instruction that he perform another job. I accept that, as acting foreman, Mr Odgers was entitled to change priorities just as Mr Mathews would have been were he still there. By reading out the refusal statement Mr Odgers confirmed that his approach to Mr Cattermole about the job was an instruction rather than, for example, a mere request. He confirmed that he was giving the instruction in his capacity as Mr Cattermole's foreman. He stated that the consequences of Mr Cattermole refusing the instruction would be that he would not be paid. He then left open the alternative of Mr Cattermole accepting the instruction in future. If Mr Cattermole had been in doubt about any of those matters he could have raised it at that stage. The conversation did not have to end there. Mr Cattermole may, for example, have been able to persuade Mr Odgers that the PCB replacement schedule should not be disrupted because the administration block employees would already have made arrangements to vacate their offices. He did not, however, attempt to do so. Given Mr Cattermole's reaction to the statement was to merely contradict, without explanation, the proposition that he was standing himself down and then return to his usual work, I find that his part of the exchange amounted to a refusal to comply with Mr Odgers' lawful and reasonable instruction. Whether There was a Waiver The most cogent submission made by the Union was that Alcoa had acquiesced in Mr Cattermole's decision to continue with the PCB exchange program, and thus had waived its instruction given through Mr Odgers, that Mr Cattermole proceed to the crib room. This , the Union submitted, amounted to the acceptance of part-performance of Mr Cattermole's employment obligations. The Union relied on the decision of a Full Court of this Court in Gapes v Commercial Bank of Australia Ltd[1], where Mr Gapes had refused to perform a significant part of his duties as an accountant at the bank as part of an industrial campaign. It was held in that case that while the bank had initially refused Mr Gapes' services altogether by instructing him to leave the bank's premises, he declined to leave. The bank did not, however, persist with its refusal to permit the appellant to work. Indeed he was "informed that he may thereafter resume duties" without having resiled from his refusal, but was told that he would not be paid for the work that he did. His keys were returned to him and he was later provided with the means of access to the bank's safe. It was held in the circumstances that the bank had waived the direction that he cease work altogether and that Mr Gapes was performing the duties which he in fact performed for the bank, with the consent of the bank. Justice Deane also considered the alternatives available to the bank: "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 entitled to be paid his salary during any period in which he was absent from his duties 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 cl 12 (c)[2] of the award during any period in which he refused to carry out a significant part of his duties... or working in defiance of an instruction from the bank to abstain from working in his job altogether.[3]" It is a question of fact in each case whether an employee is working in defiance of a direction to abstain from working, or whether the direction has been waived so that the employee is working for the employer, with the consent of the employer. Mr Cattermole was never told that he could resume duties, as Mr Gapes was. Indeed, Mr Odgers refused Mr Cattermole's request that he sign a letter acknowledging that Mr Cattermole was working. There is no doubt that Mr Odgers was aware that Mr Cattermole was continuing to work on the PCB replacement program. It seems, on the evidence, that nothing was done to direct Mr Cattermole to the crib room other than the reading of the refusal statement. He was not, for example, escorted from the premises by Alcoa's security personnel. However, it has been noted that it will not be easily proved that an employer has acquiesced in or condoned part-performance: "The notion of condonation is not advanced at all by showing that an employer could have in a confrontational way done more than he did or deepened the course of disputation. Condonation would require an employer knowingly and deliberately to take steps to concur in [industrial action]...[4]". The incident involving the accident form is not inconsistent with the direction. Mr Cattermole was approached in the workshop during a meal break and Mr Riding's statement concerning a "bad choice of words" is ambiguous. Nor is Mr Cattermole's continued disposal of the PCB capacitors relevant. Given that they were being left with him and it would have been unsafe to leave them around, he had no practical alternative but to dispose of them. The payment for work on the Tuesday is also ambiguous. Mr Odgers suggested, for example, that the job Mr Cattermole refused to do on the Monday may have been performed during an intervening shift. It seems to me that, on the evidence, it is fair to say in summary that while Alcoa did nothing after the refusal statements to stop Mr Cattermole from continuing to work, nor did they do anything positive to permit it. In so finding, I note that the safety issues arising from Mr Cattermole's work placed Alcoa in a difficult position. Mr Odgers had to keep disposing of the PCBs. Nor, for example, could Alcoa in good conscience have denied Mr Cattermole access to his protective safety gear. The denial of materials necessary to do the job might be a step reasonably available to employers in other circumstances to police their directions to stop work. Given the limits on its ability or readiness to police its rejection of its employees' part-performance of their employment obligations, it is arguable that Alcoa could have done more to make a clear statement of its intention to reject part-performance by its employees. Resort to the formality of scripted statements can give rise to difficulties where there is no attempt to gauge the extent to which individual employees have grasped and understood those statements. It would also have been desirable that employees be provided with a written statement of Alcoa's position which they could take away to consider or on which they could seek advice. Being satisfied that Mr Cattermole was told and understood that Alcoa wanted him to go to the crib-room and that he would not be paid, unless he accepted Mr Odgers' instruction, I find on balance, (and it is a very fine balance on this point), that Alcoa did enough to make its rejection of his other work clear; Mr Cattermole's decision to continue working was influenced by his expectation that payment for his work would later be negotiated as part of any settlement of the broader industrial dispute. I also find that Alcoa, having done nothing positive to permit Mr Cattermole to continue working, did not waive the direction that Mr Cattermole go the crib room and not work. The final issue arises from the judgment of the majority in the Gapes case. I have quoted earlier the dicta of Justice Deane in that case concerning what would have happened if the bank hadn't waived its rejection of Gapes' part-performance. It is obiter dicta, given that the Full Court found there had been such a waiver. It would appear that Justice Deane's view of the matter is widely accepted, at least as a general proposition.[5] However, the majority in Gapes arguably differed from Deane J on this point.[6] I have accepted the reasoning of Justice Deane rather than the majority. While the judgment of the majority would not strictly have been binding upon me, I also note the presence in this award of the requirement that an employee perform such work as the Company may, from time to time, reasonably require. While a similar term was present in Mr Gapes' contract, the unconditional terms of the award's salary clause was held to prevail. It seems to me situation is different here, where both obligations derive from the award. I have therefore dismissed the application. I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar R.D. FARRELL Associate: Dated: 6 July 1998 Representative for the Applicant: Mr C Young Counsel for the Respondent: Mr G Giudice (3 & 4 July 1998) Mr T Offer (30 September 1998) Solicitor for the Respondent: Freehill Hollingdale & Page Date of Hearing: 3, 4 July and 30 September 1997 Date of Order: 2 July 1998 Date of Judgment 6 July 1998 [1] (1980) 37 ALR 20 [2] This clause entitled the bank to make a deduction from the employees' salary in respect of time when the employee "has been absent from duty without the consent of the bank during the period in respect of which the salary is paid." [3] (1980) 37 ALR 20 at 25-6 [4] Spotless Catering Services Pty Ltd v FLAIEU (1988) 25 IR 255 at 262 per President Fisher. [5] eg "The Law of Employment", Macken, O'Grady and Sappideen, Law Book Company, 4ed. at 105-114; also Csomore v Public Service Board (1986) 10 NSWLR 587 at 595-9. [6] I note that Justice Rogers was of the view that the majority accepted his reasoning on this point as well as the ratio decidendi, but were of the view that the obligation to pay salary under Gapes' award was not conditional on work performance: Csomore v Public Service Board (1986) 10 NSWLR 587 at 595 and 597.