Re: THE AUSTRALIAN BANK EMPLOYEES UNION And: THE NATIONAL AUSTRALIA BANK Nos. VI 164, 165 of 1987 FED No. 72 Industrial Law 31 IR 436
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION Gray J.(1)
CATCHWORDS
Industrial Law - award - breach - refusal by employee to perform all obligations under contract of employment - entitlement of employee to salary under award - whether performance of services is a condition precedent for payment of remuneration - whether employees' services could be declined - whether employees were absent from duty without consent of employer.
Solicitors for the applicant: Maurice Blackburn & Co.
Counsel for the respondent: Mr. Goldberg with Mr. Turner
Solicitors for the respondent: Freehill Hollingdale & Page.
ORDER
THE COURT ORDERS THAT the proceeding is adjourned to a date to be fixed for further hearing.
NOTE: Settlement and entry of orders is dealt with by O. 36 of the Federal Court Rules.
JUDGE1
The events the subject of these two proceedings took place in December 1986, in a small town called Katanning, in Western Australia. The respondent, a company which carries on the business of banking, conducts a branch there. It is a small branCh At the relevant time, a manager, an accountant and five other staff were working there. One further staff member was on leave.
Some of the staff were members of the applicant, which is an organization of employees, registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act").
In December 1986, the applicant was engaged in a dispute with the respondent and other banks, concerning the proposed withdrawal of fringe benefits for bank employees. These benefits included low interest rates on housing loans and on credit card borrowings. The respondent and other banks were seeking to withdraw fringe benefits because of the impact of fringe benefits tax.
The applicant sent a circular to its members, suggesting various forms of industrial action which might be taken in support of continued fringe benefits. One form of industrial action was to "restrict trading hours". This involved not opening the doors of a bank at 9.30 a.m., the usual starting time, but opening them instead at 10.00 a.m., and closing the doors an hour earlier than the usual closing time. The usual closing time was 4.00 pm, except on Fridays, when it was 5.00 pm.
On Wednesday 10th December 1986, Terence Mahony, the manager of the respondent's branch at Katanning, called all of the staff of the branch together. Mr. Mahony was a member of the applicant. He wished to discuss the matters raised in the applicant's circular. After a discussion of the options for industrial action, those present resolved by majority to adopt the restricted hours option. Mr. Mahony dissented, as did Ms. Fay Cappleman,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Australian Bank Employees Union v. National Australia Bank Ltd [1989] FCA 72 (31 IR 436)
Case
[1989] FCA 72
Decision Date
CaseChat Overview and Summary
The Australian Bank Employees Union brought an action against National Australia Bank Ltd in the Federal Court, contesting the bank's refusal to pay salaries to certain employees who were absent from duty. The union argued that the employees were entitled to their salaries under the relevant industrial award, which provided for remuneration for all hours worked or not worked due to employer-imposed restrictions. The bank, on the other hand, contended that the employees' performance of services was a condition precedent to their entitlement to remuneration and that their absence without consent constituted a breach of contract.
The central legal issues the court had to resolve were whether the performance of services was indeed a prerequisite for salary payment and whether the bank had the authority to refuse services and subsequently withhold remuneration. Additionally, the court needed to determine if the employees' absence from duty without employer consent could justifiably result in the denial of their salary. The crux of the dispute lay in interpreting the terms of the employment contracts and the applicable industrial award.
In considering the arguments, the court noted that the employees' contracts of employment did not explicitly state that the performance of services was a condition precedent to salary entitlement. The court also found that the industrial award provided for remuneration in cases where employees were not required to work, indicating that the employees were entitled to their salaries even if they were absent from duty. The court highlighted that the bank's right to direct the employees' work did not extend to unilaterally withholding their salaries. Consequently, the court ruled in favour of the employees' entitlement to their salaries as per the award provisions. The court adjourned the proceeding to a future date to address the settlement and entry of orders, in accordance with Order 36 of the Federal Court Rules.
Orders
Orders of the court
THE COURT ORDERS THAT the proceeding is adjourned to a date to be fixed for further hearing.
NOTE: Settlement and entry of orders is dealt with by O. 36 of the Federal Court Rules.