The Australian Bank Employees Union v The National Australia Bank Ltd

[1990] FCA 211

LIMITED DISTRIBUTION

CATCHWORDS

Industrial Law - award - breach - penalty - mitigating factors - whether penalty should be imposed - whether breaches arose out of course of conduct.

Words and phrases - "course of conduct".

Conciliation and Arbitration Act 1904 s.l19(1A)

Gapes v.	Commercial Bank of Australia Ltd. (1981) 41 F.L.R.
27.

THE AUSTRALIAN BANK EMPLOYEES UNION	V .	THE NATIONAL
AUSTRALIA BANK LTD.
No. V1 164 of 1987 No. V1 l65 of 1987
GRAY J.
NELBOURNE

23RD APRIL 1990

IN THE FEDERAL COURT OF AUSTRALIA

)

VICTORIA DISTRICT REGISTRY

)	No. V1 164 of 1987
)	No. V1 165 of 1987

INDUSTRIAL DIVISION

)

BETWEEN: 

THE AUSTRALIAN BANK EMPLOYEES UNION

Applicant

-and-
THE NATIONAL AUSTRALIA BANK LTD.

Respondent

-	JUDGE: Gray J.
PLACE: Melbourne DATE: 23rd April 1990

EX TEMPORE REASONS FOR JUDGMENT

Judgment in these matters was delivered on 8th March 1989. A flnding was then made that breaches of the sank Officials (Federal) (1963) Award had occurred. At the end of the reasons for judgment that were then given, reference was

matter was adjourned for further hearing so that those	made to certain issues whlch had not been resolved and the	issues could be dealt wlth.
One of those Issues was the existence of other proceedings in whlch were alleged breaches by the respondent
of the same term of the award as that which was the subject

-

of these proceedings. In coming to deal with the

supplementary issues, I do not take into account, except in one respect, the existence of any other proceeding. The reason for this is that those other proceedings have been disposed of slnce judgment was delivered in March 1989 and they no longer have any relevance to this proceeding at all. I should say that my primary concern was that there might arise questions under s.l19(1A) of the Conciliation and Arbitration Act 1904, as to whether there were other breaches which fell within the same course of conduct as the two breaches the subject of these proceedings. The only respect in which I do take into account the existence of the other proceedings is one whlch is favourable to the respondent. It is that the respondent adopted the course of allowing these two cases to run as test cases and dealt with the remaining matters on the basis of the findings made in these two cases. That was of course a substantial cost beneflt to the applicant and also to the public.

Mr. Spicer of counsel, on behalf of the respondent, has put forward a number of mitigating factors in relation to	the breaches. I do have due regard to those mitigating
factors.
It is true that the conduct of the respondent was a reaction to an industrial campaign that included the exclusion of customers during normal opening hours from the branch of the respondent's bank at Katanning in Western Australia. The respondent sought to resolve that practical problem; lt did so acting openly, without any element of surprise and acting in a way that did not inflame the situation further. I am conscious that stronger action could have been taken to open the doors had the respondent chosen to do so. I also accept that this is a situation in which the law is a subject of considerable difficulty. No one with any understanding of the authorltles dealing with what is loosely called "no work as directed, no pay" would contend that those authorities are easy to reconcile.
Havlng stated those mitigating factors, I must say that I do not accept the submission made that the respondent was an innocent victim of the legislation relating to fringe benefits tax. There were many steps that occurred between the passage of the legislation dealing with that tax and the involvement of the respondent in the dlspute which led to these breaches. Not the least of those steps was a decision, no doubt made consciously by the respondent, to pursue a
employees had previously had, in the face of the fringe course which involved the cuttlng back of benefits that
benefits tax. Obviously, to some extent, the respondent had a choice as to whether to continue allowing those benefits or to endeavour to remove them.
Nor do I accept the proposition, which Mr. Spicer put, that this is a case in which there ought to be no penalty. Whilst it is true that the law is difficult, it had to a considerable extent been resolved by the Full Court of this Court in Gapes v. Commercial Bank of Australia Ltd. (1981) 41 F.L.R. 27 and the High Court of Australia had refused special leave to appeal from the judgment of the Full Court. To an extent, it must be sald that the respondent did make a choice to try and change the facts, so that they would fit better its view of what the result should have been in Gapes's case. It did so, of course, runnlng the risk that it would act in breach of the award if it turned out to be wrong. It did turn out to be wrong. In those circumstances, I regard it as appropriate that a penalty should be paid. It should not be a penalty of large proportion, although the range available (which is anywhere from a nominal penalty up to $1000) does not really give the Court much room to move.
I accept that payments have been made to the persons whose non-payment was the subject of the breaches that are involved in these proceedings.
I also accept the submission of Mr. Spicer that the two breaches with which I am dealing can properly be said to have arisen out of a course of conduct by the respondent within the meaning of s.l19(1A) of the Act. I need not say a great deal about that issue. Plainly, when the same action was taken for the same cause with respect to people doing or not doing the same thing then a course of conduct was involved. It follows that the Court is only able to impose a single penalty.
I think the appropriate amount of that penalty is $250 and I propose to lmpose it in the first numerically of the two matters before the Court, matter no. V1 164 of 1987. The result, I think, will be that there wlll simply be no further order in matter no. V1 165 of 1987.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of the Honourable Justice Gray.

Dated:  ~3~~ by 9 5 g

Associate

Appearances

Counsel for the applicant:  Mr. D. Lanqmead

Solicitors for the applicant: Maurice Blackburn & Co.

Counsel for the respondent:	Mr. Splcer
Solicitors for the respondent: Freehill, Hollingdale & Page

Date of Hearlng: 23rd Aprll 1990