United Firefighters' Union of Australia v Metropolitan Fire Brigades Board [1998] FCA 1298

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – Award – claim for penalty for withholding payment of wages from firefighters in respect of periods of industrial action – interpretation of award – effect of “no work as directed – no pay” directive – whether employer accepted part performance of employee’s full range of duties.

Industrial Relations Act 1988, ss 170PG, 170PH, 170PM, 178, 334A(2)

Metropolitan Fire Brigades Act 1958 (Vic), ss 33A(1), 78A, 78B

Metropolitan Fire Brigades Regulations 1994, reg 42

Victorian Firefighters Industry Employees Interim Award 1993

Gapes v Commercial Bank of Australia Ltd (1981) 41 FLR 27

Lennie v Hawkes (Marshall J, Industrial Relations Court of Australia, unreported, 4 October 1996)

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417

Australian Bank Employees Union v National Australia Bank Ltd (1989) 31 IR 436

Spotless Catering Services Ltd v Federated Liquor & Allied Industries Employees Union of Australia, NSW Branch (1988) 25 IR 255

F J Walker Ltd v Casey (1989) 29 IR 303

Electricity Commission of NSW v The Federated Engine Drivers and Firemen Association of Australasia (NSW) [1975] AR 504

Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587

New South Wales Teachers’ Federation v Department of Education [1980] IAS(CR) 767

Independent Education Union v Canonical Administrators (Ryan J, unreported, 9 September 1998)

UNITED FIREFIGHTERS' UNION OF AUSTRALIA v METROPOLITAN FIRE

BRIGADES BOARD

VI 1164 of 1996

UNITED FIREFIGHTERS' UNION OF AUSTRALIA v METROPOLITAN FIRE

BRIGADES BOARD

VI 1165 of 1996

RYAN J

14 OCTOBER 1998

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

vi 1164 of 1996

BETWEEN:	UNITED FIREFIGHTERS' UNION OF AUSTRALIA Applicant
AND:	METROPOLITAN FIRE BRIGADES BOARD Respondent
JUDGE:		RYAN J
DATE OF ORDER:		14 October 1998
WHERE MADE:		MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the application be adjourned to a date to be fixed.

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1165 of 1996

BETWEEN:	UNITED FIREFIGHTERS' UNION OF AUSTRALIA Applicant
AND:	METROPOLITAN FIRE BRIGADES BOARD Respondent
JUDGE:		RYAN J
DATE OF ORDER:		14 October 1998
WHERE MADE:		MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the application be adjourned to a date to be fixed.

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1164 of 1996

BETWEEN:

UNITED FIREFIGHTERS' UNION OF AUSTRALIA

Applicant

AND:

METROPOLITAN FIRE BRIGADES BOARD

Respondent

VI 1165 of 1996

BETWEEN:	UNITED FIREFIGHTERS' UNION OF AUSTRALIA Applicant
AND:	METROPOLITAN FIRE BRIGADES BOARD Respondent
JUDGE:		RYAN J
DATE:		14 october 1998
PLACE:		MELBOURNE

REASONS FOR JUDGMENT

There are before the Court two applications, VI 1164/96 (“the first application”) and VI 1165/96 (“the second application”), each of which seeks the imposition of a penalty upon the respondent pursuant to s 178 of the Industrial Relations Act 1988 (“the Act”) for an alleged breach of the Victorian Firefighters Industry Employees Interim Award 1993 (“the Award”).

At the relevant time, members of the applicant were engaged in industrial action against the respondent, their employer. The industrial action took the form of work bans, of which the first, the subject of the first application, was a refusal by firefighters to stand by at another fire station, that is a refusal, when requested, to transfer to and work at another fire station at which the staffing levels were below the required minimum. The second form of work ban, the subject of the second application, involved firefighters, who were qualified to do so, refusing to act in a higher rank in order to maintain minimum staffing levels upon particular fire-fighting fire appliances.

The applicant adduced evidence from four firefighters, the evidence of two of them being directed to the first application and the evidence of the remaining two related to the second application. The first firefighter to give evidence was Mr Paul Oliver who, at the relevant time, had been employed at the Box Hill fire station in the capacity of Senior Firefighter and was qualified to act as a Leading Firefighter. The only fire appliance at the Box Hill station was a pumper, which had a minimum staffing level of three, one officer and two firefighters.

On 18 January 1996 at the commencement of Mr Oliver’s rostered night shift there was a full quota of four staff present at the station, one above the minimum staffing level of three necessary to operate the pumper. At approximately 1924 hours, Inspectors Holmes and Wilson arrived at the station and asked whose turn it was to stand by. Mr Oliver gave evidence that there had been eight requests to stand by at the station over the previous few days and that the firefighters had taken it in turns. Since it was then Mr Oliver’s turn, he refused the request to stand by. It was common ground between the parties that Inspectors Holmes and Wilson had in their possession at this time a pro forma document headed “Stand Aside Procedure” from which they read questions and upon which the answers to the questions were recorded at the time they were given. The document was in the following terms:

STAND ASIDE PROCEDURE

ALL responses should be recorded, particularly the question as to why they are refusing.

State: A comment other than “yes” to the following questions will be taken as “no”.

Under the terms of your employment, your award and the MFB Act 1958 you are required, during this shift to work as directed in that you will (send a) standby to 24 Station.

I am directing you to (send a) standby to 24 Station.

I will ask you once more. I must warn you that if you are not prepared to work as directed, you will be stood aside without pay and will be required to leave the station.

Do you understand?

If “no” – explain ramification.

Are you prepared during this shift to (send a) standby to 24 Station?

As you are refusing to work as directed you are stood aside without pay for the remainder of the shift.

You are now off shift and must leave the station.

You are not to perform any work until you indicate that you will work in accordance with directions.

After the inspectors left the station, Mr Oliver remained there and, in his own words, “just performed normal duties”.

The second firefighter to give evidence was Mr Albert Perini who testified that he and Leading Firefighter Terry Theodore had both been stationed at the relevant time at the Windsor Fire Station. That station then had three appliances, a pumper, which required a crew of three, one of whom had to be a senior fire station officer, a combination ladder which required a crew of four, one of whom had to be a station officer, and a turntable ladder with a crew of two.

Leading Firefighter Theodore had been rostered on the night shift for 14 January 1996 at the Windsor fire station. The station had one firefighter above the minimum number required to operate the station. In accordance with what was apparently the normal practice when a firefighter was required to stand by at another station, a request was made in the first instance by telephone. At about 1830 hours Inspector Garrard rang the Windsor fire station and requested a stand by to 39 station. Senior Station Officer McMullen refused the request. At about 1850 hours Inspectors Murphy and Taylor arrived at the station and requested a stand by. The firefighters made a video recording of the events of that evening. The inspectors read from a set of procedures and, after a refusal bythe firefighters to stand by, they were informed by Inspector Murphy that they were stood aside without pay and that they must leave the station. Inspector Murphy also informed the firefighters present that they were not to perform any work until they had indicated that they would work in accordance with directions. Inspector Murphy made an entry in the occurrence book in the following terms:

Mr Theodore was observed to remain at the fire station manning his appliance, the combination ladder, and was further observed to have turned out to an alarm of fire later that evening.

The applicant called two witnesses whose evidence was directed to the second application. The first, Firefighter Donald Maxwell, had been stationed in January 1996 at the Oakleigh fire station. At that time the main appliance at Oakleigh was a pumper. There was also a rescue unit to attend road accidents and a specialist pumper called a tele-boom. The minimum staffing level to operate the pumper was one officer and three firefighters. The tele-boom had the same staffing requirement, while the rescue unit required one officer and one firefighter.

On 1 January 1996 Mr Maxwell was rostered to work on the day shift commencing at 8.00 am. No officer was present to work on that shift so, in order to maintain the staff complement required for the station, an officer was retained from the previous night shift. Between about 9.30 and 9.45am, Inspectors Stevenson and Tisbury arrived at the station. The firefighters were each asked whether or not they were prepared to man the appliance. Mr Maxwell said that, in accordance with the union instruction, he declined to “act up” to the position of officer. He further indicated that the questions asked of him were in accordance with the stand aside procedure and followed the standard written form which was in these terms:

STAND ASIDE PROCEDURE

(Ask these questions of each individual)

To each individual

Q.1 Are you prepared during this shift to respond on this appliance to alarms of fire in accordance with the Metropolitan Fire Brigades Act.

[If No] Ask again

[If No] Ask “Why Not?”

[Finally]

I will ask you once more. I must warn you that if you are not prepared to work as directed you will be stood aside without pay and will be required to leave the shift.

Do you understand?

[If Yes] Ask original question (question 1) again.

[If No] You are stood aside without pay. You are now off shift and must leave the station. You are not to perform any work until you indicate that you will work in accordance with directions.

NB: The name of each individual should be recorded.

and

importantly their responses to the questions.

particularly the question as to WHY they are refusing.

Although the question asked of him in accordance with the “stand aside procedure” was directed to his preparedness to respond to alarms of fire in accordance with the Metropolitan Fire Brigades Act 1958 (Vic), Mr Maxwell acknowledged that he understood in the context that he was being asked to “act up” as an officer on the tele-boom and intended by his answer to convey that, in compliance with the Union directive, he would not.

Inspector Stevenson repeated this process with each of the firefighters present on shift at that time. He then informed Mr Maxwell that he was stood down without pay and was then off shift. Mr Maxwell agreed, in the course of his oral evidence, that he understood clearly what this meant. When asked by Mr Parry of Counsel for the respondent “Whilst you might have been at work you were not on the official shift of the fire brigade?”, he replied “I understood that to be right, yes.” Mr Parry also asked Mr Maxwell “Do you recall the inspector, as you have indicated, saying you are not to perform any work until you indicate that you will work in accordance with directions?” Mr Maxwell answered “I think I remember him saying something along those lines” and admitted that at no stage did he contact the Inspector and state that he was prepared to work in accordance with the directions to act in a higher rank. Inspector Stevenson recorded this incident in the occurrence book as having occurred at 1108 hours. Mr Maxwell, however, decided to remain at the station and in his own words “I did the normal station work that’s required of me”. During the remainder of the shift, Mr Maxwell attended to the FSE, which monitors incoming calls to the station and also turned out on the pumper in response to one alarm of fire.

It also appears that at some time during the remainder of Mr Maxwell’s shift, the station rescue unit broke down. This appliance was manned by an officer and one firefighter who thus became available for redeployment on another fire station appliance. Mr Maxwell was asked by Station Officer Wynn to man the tele-boom, which he did. It is recorded in the occurrence book that the tele-boom was placed back in commission at 1515 hours.

It was common practice at the Oakleigh station, in the absence of an officer, for a leading firefighter to act in a higher rank when requested to do so. Mr Maxwell admitted that his refusal to “act up” had been by way of implementing the union bans in force on “acting up” and standing by at another station.

The occurrence book for 1 January 1996 records at 1451 hours:

SSO Wynne notified Central Zone Inspector of extra man power available to man teleboom and told to withhold the manning of teleboom until further notice.

The occurrence book records at 1515 hours:

TB 25 back in commission with crew of S.O. Mole, L/F Maxwell, S/F Barry, S/F Lindley, S/F Dowall. This has been done on the instructions of Insp Haines, Central Zone Inspector - ‘A’ Shift.

The second witness for the applicant in relation to the refusal by firefighters to act in higher classifications was Firefighter Stephen Bartlett. At the relevant time Mr Bartlett was a Senior Firefighter with leading firefighter qualifications stationed at the Sunshine Fire Station. That station had a pumper, a tele-boom and a rescue vehicle. The minimum strength for the station was ten, consisting of three officers, one for each appliance, and three firefighters for each of the tele-boom and the pumper respectively and one further firefighter for the rescue vehicle.

On 31 December 1995 Mr Bartlett was rostered to work on the night shift commencing at 1800 hours and finishing at 0800 hours on the following day. At the commencement of the shift there were available only two of the three officers necessary to direct the operation of each of the three appliances at the station. Consequently, the tele-boom was not operative. Commander Nicholson and Inspector Stevenson arrived at the station at approximately 2000 hours. It seems that, following a request from the firefighters, Senior Station Officer Clarke was required by Commander Nicholson to return to the station. Upon Senior Station Officer Clarke’s return, Commander Nicholson enquired of the firefighters manning the tele-boom whether they were prepared to “act up” in the position of officer. Senior Station Officer Clarke, however, directed that nothing more be done until a Union representative had arrived. At 2100 hours the Union representative, Mr Peter Marshall, arrived. He, together with Mr Bill Critchley the shop steward, then attended a meeting with Commander Nicholson and the firefighters who remained available to man the tele-boom. Commander Nicholson then enquired of the firefighters whether any of them would “act up” as an officer upon the tele-boom.

Commander Nicholson asked each of the firefighters individually whether he was prepared to turn out on the tele-boom. The firefighters did not answer but Mr Marshall, the union delegate, indicated that they had nothing to say. Once they had all been asked three times and on each occasion had refused to say anything, the firefighters were told that, as they were refusing to work as directed, they were not to perform any duties until they were prepared to “abide by the MFB Act” and were stood aside without pay. An entry in the occurrence book for 2105 hours records the standing down of Messrs Lake, Windlow (sic), Bartlett and Williams.

Mr Bartlett told Commander Nicholson that he intended to stay at the station. At some stage before Commander Nicholson left the station he told the men who had been directed to man the tele-boom that they could remain at the station on shift but should not catch any appliance as they would not be covered by WorkCare. Commander Nicholson explained his acquiescence in the men concerned remaining at the station by saying “...they were there without authority. They were booked off duty and rather than physically force them off the station, they were allowed as a matter of goodwill to remain on the station, perform no tasks, they had no authority to perform any tasks at all. They were booked off duty.” The following exchange occurred when Mr Bartlett was cross-examined by Mr Parry of Counsel for the respondent:

Yes. Not covered by WorkCare was, as you understood it, because you were not on duty? - Well, I took it as a threat.

Yes, you understood it as saying you’re not on duty. If you’re injured at work the Workers Comp Act--? I understood what Mr Nicholson was saying.

You understood the significance of that, did you not?--I understood.

Mr Bartlett remained at the station for the remainder of the shift. The occurrence book for 0800 hours on the following day, 1 January 1996, records:

L/F Williams, S/F Wenlock S/F Bartlett F/F Lake OFF DUTY.

After Commander Nicholson had left the station in the evening of 31 December 1995 Senior Station Officer Clarke re-assigned the firefighters to other appliances. However, it seems that there was no place for Mr Bartlett on either of the other operative appliances and he stayed at the station for the remainder of the shift. It was common ground that the usual practice at the Sunshine station was that, in the absence of an officer to direct the operation of the tele-boom, a leading firefighter would be asked to “act up” in that capacity and would accede to the request.

Under cross-examination by Ms M Richards of Counsel for the Union, Commander Nicholson acknowledged that Mr Bartlett was not qualified to act as the senior man on the tele-boom. However, he, Nicholson, regarded Bartlett as having refused to man the tele-boom even if a qualified person could be found to “act up” by directing its operation.

By its statement of claim in the first application, the applicant alleged that cl 4 of Section II, Div A Sched 1, Pt B of the Award prescribed weekly wages to be paid to firefighters employed in the classifications of Firefighters, Senior Firefighters and Leading Firefighters set out therein. It was further alleged that, in breach of that prescription, the respondent had failed to pay to each of the relevant employees, including Mr Oliver, Mr Theodore and Mr Perini in respect of the week in which the alleged “stand-downs” occurred the full weekly wage prescribed for that employee by cl 4 of the Award. Similarly, it was alleged in the statement of claim in the second application that, in breach of the same Award prescription, the respondent had failed to pay each of the relevant employees, including Mr Bartlett and Mr Maxwell, the full weekly wage prescribed for that employee by cl 4 of the Award in respect of the week which included 31 December 1995 and 1 January 1996.

Clause 4 of Section II Div A of the Award was headed “WAGE PER WEEK” and Schedule 1 immediately under that heading was in these terms:

Column 1

Column 2

Column 3

Column 4

Classification

Notional

Relativities

Weekly

Wage

38 hrs

Shift

Loading

30% of

Col. 1

Av. 40 hrs

Loading

(10.5263% of

Col. 1 & 2)

Total

Recruit (10 week)

F/F Level 1

F/F Level 2

F/F Level 3

Qualified F/F

Qualified F/F

(with L/F Quals)

Senior F/F*

Leading F/F

88

100

105

110

115

413.70

421.90

431.10

467.00

489.60

512.10

534.70

124.11

126.57

129.33

140.10

146.88

153.63

160.41

56.61

57.73

58.99

63.90

66.99

70.07

73.16

413.70

594.42

606.20

619.42

671.00

703.47

735.80

768.27

* Applicable only for existing firefighters of this rank and qualified firefighters prior to 26 April 1991.

(b) The loading set out in Column 3 of subclause (a) of this clause is provided in substitution for the two penalty shifts included in each eight weeks’ cycle.

(c) The loading specified in Column 3 of subclause (a) of this clause shall not be used for purposes of calculating overtime payments.

Clause 19(a) of the Award stipulated what should be the ordinary working hours for employees by providing:

The ordinary working hours for employees shall be 38 per week over a cycle of eight weeks for which the roster of hours and leave operates. Employees shall be rostered and worked an average of 42 hours per week, two of which hours shall be overtime work and paid for as such and the remaining two hours shall be taken as accrued leave in accordance with the roster laid down for this purpose.

Clause 20 provided for a “10/14 ROSTER SYSTEM” based on a rotating number of day shifts (from 8 am to 6 pm) and night shifts (from 6 pm to 8 am) over a four week cycle. It stipulated under the sub-heading “Shifts”:

(b) The following general conditions shall apply:

(i) The roster may be varied for employees on special duties and to provide that during the first year of service an employee may be rostered for up to five consecutive day duties.

(ii) The roster when once compiled shall not be departed from except to meet an emergency due to sickness or other unexpected or unavoidable cause or by personal agreement between the employer and the employees concerned.

(iii) In the event of an alarm requiring any station to stand by or turn out for a fire being received at the station during roll call the oncoming shift shall man the appliances, and if required, proceed to the fire and the offgoing shift shall remain on duty if required until the other shift returns or until otherwise directed when it shall be dismissed.

(iv) If, when the oncoming shift reports at a station at the time prescribed for the change of shift, the other shift is proceeding to, or attending a fire or alarm, the oncoming shift, if so ordered shall, after roll call, proceed to the fire; and the officer or senior member of the shift shall report the arrival of the shift to the Officer-in-Charge of the fire without delay. The offgoing shift shall remain on duty at the fire until relieved. The Officer-in-Charge at the fire may if in his/her judgement it is expedient, hold both the oncoming and offgoing shift for duty at the fire. If the offgoing shift is not held at the fire or detailed at the fire for duty elsewhere, it shall report back to the station and remain available until the other shift returns or until otherwise directed, when it shall be dismissed.

(v) In the event of one or more members of the oncoming shift being absent, an equal number of members in the shift on duty may be detained on duty until such time as he/she or they may be relieved. Nothing herein contained is to be deemed to sanction an unauthorised absence or to relieve the absent member from a liability to be charged with being absent without leave and dealt with accordingly.

(vi) Subject to the provision of this clause, every employee shall be dismissed punctually from his/her rostered shift.

(vii) Notwithstanding anything contained in this clause, in the case of fire all employees off duty shall be liable to be called upon to report for duty and if called upon shall report for duty immediately.

(viii) Provided that, for the purpose of paragraph (vii) herein “fire” means the same as “alarm of fire” as defined in Section 32A of the Metropolitan Fire Brigades Act 1958 (Vic).

On behalf of the applicant it was contended that the respondent’s obligation to pay the full amount of the wages prescribed by the Award for the week in question was absolute and did not depend on the employees’ working or being ready, willing and able to work for the whole of the relevant shift. Reference was made to Gapes v Commercial Bank of Australia Ltd (1981) 41 FLR 27 where it was observed in the joint judgment of Smithers and Evatt JJ at 28-29:

The obligation under the award to pay a salary depends upon its terms express or implied. If the terms of the award provide unconditionally for the payment of a yearly salary in stated proportions at stated times during the continuance of the relevant relationship of employer and employee, it is not to the point that at common law obligations to pay salary under a similar class of contract to which no award was relevant might have been regarded by the law as conditional on a particular degree of work performance. Where there is an award applicable to a contract of employment it is necessary to ascertain that the award does provide expressly or impliedly about payment of remuneration.

When one looks at this award one finds, save in cl. 12(c) thereof, no hint that non-performance of part of the duties of a particular category of employment will justify a reduction in salary. On the proper construction of the award the obligations created therein with respect to payment of salary do not depend upon actual performance of particular duties. Accordingly there being a state of employment to which this award is applicable the obligation to pay salary as and when provided therein is not conditional on work performance. The obligation persists while the relevant state of employment exists. In this case the state of employment in the relevant category was in existence at all relevant times because while the employee was performing duties appropriate to his classification, although not all of such duties, and the employer was accepting such performance, it could not be said that the relevant state of employment did not exist. The employee was not dismissed and he had not resigned.

Once there is a contract of employment of such a nature that the terms of an award are applicable to it, then, so far as the award speaks, the terms of the award must be obeyed. Normally, as in this case, the terms of employment specifying for example, whether hourly, weekly or otherwise, and the payments to be made are prescribed in the award. The award may specify whether the employee’s remuneration shall be earned hourly, weekly or otherwise and whether that remuneration is payable periodically as part of a salary in a particular classification of employment. In cases of the latter kind the obligation to pay salary as and when it is expressed to be payable could be made conditional on performance of all the duties of an employee in the relevant classification of employment or it may be created subject to no such condition. In this case it is impossible to find any factor by reference to which the obligation to pay salary, being expressed absolutely, may be construed as subject to an implication that the obligation to pay is conditional on the duties of the employment being performed to some lesser or greater degree.

This does not mean that breach of the promise of the employee to perform his duties is not a breach of contract with appropriate legal consequences. It only means that the breach does not touch the obligation under the award to make the specified payments of salary. The remedy will be in damages to be measured according to the loss suffered by the employer as a result of the breach. That may be minor or major according to circumstances. Where some or most duties of an employment are performed, and others are not, it would be an unusual case where the measure of damages suffered by the employer equalled an amount calculated, for instance, on the basis of the proportion to the total period of employment of the number of the days during which the employee’s default continued. Deduction of a sum so calculated would normally be inappropriate in the case of an employment on annual salary payable periodically even where no award was involved.

In the same case, Deane J observed, in a separate judgment, at 32:

Prima facie, the award entitled the appellant, while he remained in the employ of the bank, to be paid the annual salary appropriate to the capacity in which he was acting. The only express provision in the award which could arguably be suggested, in the circumstances of the present matter, to absolve the bank from the obligation to pay the appellant in respect of the relevant three days is to be found in cl. 12(c) which entitles an employer bank to make a deduction in accordance with a formula in respect of every hour or part of an hour that an employee “has been absent from duty without the consent of the bank during the period in respect of which the salary is paid”. Senior counsel for the bank initially conceded that the provisions of that clause were inapplicable to the circumstances of the relevant three days. Subsequently, however, that concession was, at least partially, withdrawn. I propose to deal with the appeal on the basis that the bank relies, inter alia, upon the provisions of cl. 12(c) to justify its refusal to pay to the appellant his salary for the three days in question.

The contract of employment between the appellant and the bank was in written form. It provided, in terms, that the appellant should “diligently perform all duties and tasks which may devolve upon him or which any authorized officer may entrust to him or request him to perform”. The terms of the award operated upon that contract in the sense that the award governed the terms of employment which the contract, and not the award, created. To the extent that there might be express or implied inconsistency between the terms of the award and the terms of the contract of employment, the terms of the award prevailed. Otherwise, both appellant and bank were bound by the terms of the contract between them. There was nothing in the award inconsistent with the above-mentioned provision of the contract of employment. In refusing to perform part of the ordinary duties which had devolved upon him, the appellant was in breach of the terms of that provision of that contract.

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 in accordance with that direction 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) of the award during any period in which he refused to carry out a significant part of his duties and was, as a result, either excluded altogether from the performance of his duties or working in defiance of an instruction from the bank to abstain from working in his job altogether.

It was said on behalf of the applicant that there was nothing in the Award in the present case which gave rise to a right in the employer to withhold payment of remuneration at the prescribed rate referable to a period during which an employee refused to work as directed. The passage from the joint judgment in Gapes to which I have just referred was cited by Marshall J in Lennie v Hawkes (unreported, Industrial Relations Court of Australia, 4 October 1996) in support of this conclusion, at 31:

The applicants are entitled to be paid for the work actually performed by them on each of 10 and 16 May 1996 respectively. Further, Mr Laird is entitled to be paid for the period on 10 May 1996 after he returned from the stopwork meeting and presented himself for work but was directed not to work by Mr Makepeace. There is nothing in the award, which was in evidence before the Court which would permit deductions from Mr Laird’s wages in the circumstances.

However, in Lennie v Hawkes the applicant, Laird, had stopped work between 9.30 am and 11.30 am on 10 May 1996 and after 1.45 pm on 16 May. The employer, the Commissioner for Public Sector Employment in the Northern Territory, in reliance on a notice under s 170PH of the Industrial Relations Act of intention to take industrial action, claimed that the employees had been “locked out” for the whole of each of those days and deducted amounts from the employees’ salaries at the rate indicated by the award as referable to the whole of each of those days. His Honour found that the purported lock out was not protected action for the purposes of s 170PG so as to entitle the employer to refuse to pay remuneration in respect of the period during which the lock out continued in force. However, there was no suggestion in that case that the employees were entitled to remuneration for the periods of the stopwork meetings.

For the applicant, it was further argued that the Award has to be construed in the context of the employment which it was concerned to regulate which included the provisions of the Metropolitan Fire Brigades Act and the Regulations made thereunder. Reference was made in particular to s 33A(1) of that Act which provides:

Subject to sub-section (2) the officers and employees of the Board, including the officers and members of any permanent fire brigade under the Board, shall be respectively paid such wages or salaries as the Board thinks fit being not less than as are provided for in any award or agreement under any Act of the Commonwealth relating to conciliation and arbitration or under the Employee Relations Act 1992 applicable to such officers and employees.

Counsel for the applicant also pointed to ss 78A and 78B of the Metropolitan Fire Brigades Act. The former section under the sub-heading “Discipline” provides:

An officer or member of a brigade who is-

(a) guilty of any breach of the regulations;

(b) guilty of any misconduct;

(d) inefficient or incompetent and such inefficiency or incompetence arises from causes within his own control; or

(e) guilty of any disgraceful or improper conduct-

shall be guilty of an offence.

Regulation 42 of the Metropolitan Fire Brigades Regulations 1994 provided, perhaps superfluously, that:

A member of the Brigade must not-

(a) disobey or fail to carry out any lawful order given in the course of their duty whether the order is in writing or not;

...

In the light of those provisions, so it was submitted, it was open to the respondent to have any of the relevant employees who had refused a lawful order from one of their superiors on 31 December 1995, 1 January, 14 January or 18 January 1996 charged with an offence pursuant to s 78B of the Metropolitan Fire Brigades Act thereby exposing the employee to a reprimand or fine and, additionally, if the charge were referred to the President of the Board, to dismissal or reduction in rank. Section 78B also contemplates that the employee charged may be suspended from duty pending the hearing and determination of the charge.

Another part of the statutory context against which the Award should be construed was said to be provided by the presence in the Industrial Relations Act of s 334A(2) and the concept of “protected action” erected by ss 170PG and 170PM which was not attracted by what the respondent did in the present case.

It was next submitted that the obligations imposed on the respondent employer by the Award were quite independent of the rights and obligations which each party to the contract of employment had at common law. In support of this proposition, reference was made to the joint judgment of Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 where it was said at 419:

The award effected an alteration in the rights and obligations of the parties to the contract, but it did so by force of the Conciliation and Arbitration Act. The debt which arose as a consequence was a debt which owed its origin to the statute and not to the contract. That is why the Court examined the Conciliation and Arbitration Act in order to determine whether it contained anything inconsistent with recovery by way of civil action.

In the same judgment, speaking at 420 of the judgment of Dixon J in Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 431, their Honours said:

However, we do not understand Dixon J to be saying in that passage that “a term imported by statute into the contract of employment” loses its statutory character and becomes incorporated in the contract as one of its terms. On the contrary, he recognises the distinction between an obligation originating in a statute and an obligation arising from a contract. In his view, the distinction was not of importance in that case, but it is crucial in the present one. No doubt there are terms which are incorporated by statute in contracts of a particular kind so that the ordinary remedies for breach of contract are available in relation to them (eg, the Sale of Goods Acts). And apart from statute, a term may be implied by law as an incident of a particular class of contract (See Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555 at 576; Liverpool City Council v Irwin [1977] AC 239; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 345-346), but we do not understand the appellants to be submitting that any such implication arises here. They rely upon the statutory force given to the award and say that, because the relationship between the parties is contractual, the provisions of the award – or at least some of them including cl. 11(a) in this case – become terms of the contract enforceable by the use of contractual remedies as well as the remedies provided by statute.

A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. The award regulates what would otherwise be governed by the contract. But award rates are imported as a statutory right imposing a statutory obligation to pay them. The importation of the statutory right into the employment relationship does not change the character of the right. As Latham CJ points out in his judgment in Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423, the legal relations between the parties are in that situation determined in part by the contract and in part by the award. And as the judgment of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement.

The passage from the judgment of Latham CJ in True to which their Honours there referred is in these terms:

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 in a unanimous judgment of this court in Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 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 the remuneration”.

Given that it is a statutory obligation to pay wages imposed by the Award which is sought to be enforced in the present case, those authorities on the interaction between an award and a contract of employment make it clear that it is necessary to examine the terms of the award to see whether it made the employer’s obligation dependent on the performance by the employee of any, and if so what, duty or service. In my view, when examined in that way, the present Award conditioned the obligation on the employer to pay the wages prescribed by cl 4 of Section II Div A upon the performance of “work” by the employee.

In the first place, cl 4 prescribed remuneration as a “weekly wage” for 38 hours. It also contemplated in para (c) the working of overtime. Overtime was governed by cl 23 of Section V which was in these terms:

(a) All times worked by an employee in excess of the day’s rostered shift or for more than four shifts in any one week shall be paid for at the rate of double time calculated to the nearest quarter of an hour.

(b) Where overtime is worked for two hours or more before or after a rostered shift a meal allowance for each meal shall be paid to each employee working the said overtime.

(c) An employee who performs overtime duty shall have the right to elect to be either paid penalty rates for such overtime duty or to be given time off in lieu of the penalty rates. Provided that the time taken off in lieu of the said penalty rates shall be of a period equivalent to the period of overtime actually worked.

(d) An employee who has elected to be paid penalty rates for any period of overtime duty, may, at any time before his/her claim for payment is submitted, change his/her election to that of being given time off in lieu of payment of the penalty rates.

(e) An employee who having elected to take time off in lieu as per (c) hereof and who for whatever reasons has not done so after the expiration of the ensuing four pay periods will be paid the penalty rates he/she would otherwise have been entitled to.

Recall

(f) (i) An employee off duty, recalled to duty shall be paid for a minimum of four (4) hours at double time, provided that, except in the case of unforeseen circumstances arising, the employee shall not be required to work the full four (4) hours if the work to be performed is completed in a shorter period. (Emphasis added.)

The necessity of an employee’s attending for “work” to avoid deduction of pay is also strongly implied by the introductory words of cl 27 governing “SICK LEAVE” which stipulated:

(a) An employee absent from his/her work on account of personal illness or on account of injury by accident shall be entitled to leave of absence without deduction of pay subject to the following conditions and limitations:

(i) The employee shall at the commencement of such absence inform the employer of inability to attend for duty and, as far as practicable, state the nature of the injury or illness and the estimated duration of the absence.

Those provisions clearly indicate, I consider, an intention evinced by the Award construed as a whole that remuneration prescribed by cl 4 should be earned by the performance of “work” or by being “on duty” for the specified periods of ordinary time and overtime. Both ordinary time and overtime are envisaged as being “worked” as is borne out by the recurrence of that expression which I have emphasised in reproducing cl 23. This construction is reinforced by the direction in cl 19 that “Employees shall be rostered and worked an average of 42 hours per week, two of which hours shall be overtime work...”. The equation between “work” and the performance of “duties” or “duty” is made, for example, by the frequent use of the latter expressions in sub-cl 20(b) quoted above as governing shift work. See also cl 21 allowing the undertaking by employees of “alternate duties” and the concession in cl 22 of “sleeping time” to employees on “night duty”. Clause 22 was in these terms:

(a) Employees on night duty shall be permitted, between the hours of 11.00pm and 7.00am to recline and sleep, provided that:

(i) Sufficient beds, mattresses and covers, pillows shall be supplied at each station to accommodate the number of employees on night shift at each station.

(ii) An employee shall be responsible for the cleanliness of such sleeping articles as are used by him/her.

(iii) An employee prior to going off duty shall store out of sight such sleeping articles as are used by him/her. The employer shall provide facilities solely for the storing of employees’ sleeping articles.

(iv) An employee’s turn out gear shall be replaced in such a position that a minimum of delay will arise in turning out on receipt of a call or fire.

(v) An employee shall recline and sleep only when there is no work to be performed by him/her.

Moreover, the performance of “duty” or “duties” was contemplated as embracing, at least in part, the carrying out of reasonable and lawful directions given on behalf of the employer. That is made clear by cl 51 which, under the heading “STRUCTURAL EFFICIENCY”, recited:

(a) The employer may direct an employee to carry out such duties (including drills and training) as are within the limits of the employee’s skill, competence and training consistent with the classification structure of this award provided that such duties are not designed to promote de-skilling.

(b) The employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and equipment.

(c) Any direction issued by the employer pursuant to subclauses (a) and (b) shall be consistent with the employer’s responsibilities to provide a safe and healthy working environment.

For these reasons, I regard the present Award as distinguishable from that considered by the Full Court in Gapes v Commercial Bank where it was held by Smithers and Evatt JJ that the obligation to pay salary was not conditional on work performance. The obligation to pay an annual salary was imposed by the Award considered in Gapes in these terms:

6 – SALARY RATES – ADULT OFFICERS

Adult Males

(a) Except as otherwise provided any adult male officer with years of adult service (other than an officer in respect of whom a certificate under section 48 of the Conciliation and Arbitration Act is in force) shall be paid the salary hereinafter assigned to those years of adult service-

Years of adult service Salary per annum

1^st 2,705

2^nd 2,840

Another important point of distinction between the present Award and the award considered by the Full Court in Gapes and by Gray J in Australian Bank Employees Union v National Australia Bank Ltd (1989) 31 IR 436 is the presence in the latter award of cl 12(c) which provided:

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.

That sub-clause, I consider, codified the circumstances in which the employer was entitled to withhold payments of salary otherwise due under cl 6. It was seen by both Smithers and Evatt JJ in their joint judgment in Gapes and by Deane J as capable of applying where an employee by his or her own voluntary act had brought about an “absence from duty”.

Because each of Mr Oliver, Mr Perini, Mr Theodore and Mr Maxwell had refused, while rostered for a shift to be worked under cl 19(a), to “stand by” or “act up” when directed to do so, it follows that none of those firefighters, while that refusal continued, had been “on duty” or performing work in accordance with the Award. Mr Bartlett, it seems, could not lawfully have been directed to “act up” on the tele-boom but his unequivocal refusal to man that appliance in any capacity similarly precluded him, I consider, from working or carrying out his “duty” or “duties” under the Award.

The construction of the Award which leads to the conclusion which I have just indicated is also supported by decisions of courts and industrial tribunals to which claims have been made for payment for work done during periods in which employers had purported to implement a regime of “no work as directed – no pay”. See e.g. Spotless Catering Services Ltd v Federated Liquor & Allied Industries Employees Union of Australia, NSW Branch (1988) 25 IR 255, F J Walker Ltd v Casey (1989) 29 IR 303 per Pincus J at 316-317 and Electricity Commission of NSW v The Federated Engine Drivers and Firemen Association of Australasia (NSW) [1975] AR 504 where the Commission in Court Session said, at 514:

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 employment prescribe, an employee must be ready and willing and able to perform in accordance with the lawful and reasonable direction of his employer the service for which he contracted, and that any 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 was for the remainder of the shift – he disentitled himself to payment of wages. This disentitlement arose exclusively from his own action, and the non-payment of wages which followed was because of that disentitlement and not by reason of any other cause. In our opinion, the Electricity Commission was not obliged to pay Mr Swieringa for any time of his rostered shift on Monday, 17 February 1975, after the time he first refused to carry out the duty required of him.

Those decisions appear to proceed from the premise, expressly articulated by Rogers J in Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587, that a statute or award is not to be construed as taking away the employer’s right acknowledged by the common law to withhold payment of wages for periods of non-performance of duty unless the language of the award or other statutory instrument intractably compels such a construction.

The same line of authority provides the answer to the further submission advanced on behalf of the applicant that the disciplinary machinery erected by ss 78A and 78B of the Metropolitan Fire Brigades Act and reg 42 of the Metropolitan Fire Brigades Regulations by implication excludes the respondent from suspending an employee from duty except on the limited basis indicated in s 78B. What happened here was not a suspension from duty but an intimation by the employer, in the face of a refusal by the employees to perform a significant part of their ordinary duties, that it would not accept, as entitling them to wages, the performance of their remaining duties. As Rogers J said in Csomore, at 597:

Counsel for the plaintiffs submitted that Mr Hill was entitled to payment of his salary in all circumstances, the only qualifications being s 96(3) of the Act and reg 20(3). Neither provision can apply. Section 96(3) deals with the question of salary in the context of a suspension in accordance with the Act. That did not happen. Regulation 20(3) has no application. In those circumstances it was submitted that Mr Hill was therefore entitled to sue for and recover in full the whole of his salary in accordance with s 82(2). The submission, made in the absolute terms in which it was, should be rejected. Carried to its logical conclusion it would mean that Mr Hill was entitled to his full salary if he completely failed to work. That is not the effect of the Act. Nor is his case advanced if he fails to do the work assigned to him unless his failure is in some way waived. That did not happen in his case.

Nor does the presence in the Industrial Relations Act of ss 170PG, 170PM and 334A(2) support the view that the Award was framed to impose a mandatory obligation on the employer to pay its employees in respect of periods of industrial action unless the employer has retaliated by a lock out which acquired the character of “protected action”. For one thing the Award can be traced to a prescription of the Victorian Employee Relations Commission made in a context quite divorced from that of the special provisions of the Industrial Relations Act which I have just mentioned. Secondly, as I indicated in Independent Education Union v Canonical Administrators (unreported, 9 September 1998) at 26:

I entertain considerable doubt whether the exercise of a claimed right to withhold payment of salary or wages amounts to injuring an employee in his or her employment or alteration of the position of an employee to the employee’s prejudice within the meaning of s 170MU(1) [of the Workplace Relations Act 1996]. As I perceive it, the purpose of that sub-section is to ensure that the relationship of employer and employee can resume or continue unaffected after the conclusion of protected industrial action. Accordingly, the employer is prohibited from dismissing or demoting the employee for the proscribed reason. Similarly, the sub-section precludes an employer from discriminating against an employee wholly or partly for the same reason, by, for example the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than are extended to other employees.

Similar considerations apply to the offence created by s 334A(2) of the Industrial Relations Act.

It was argued on behalf of the applicant, in the alternative, that the respondent had revived the entitlement of the employees concerned to wages by accepting the benefit of work done by those employees after their respective refusals to “stand by” or “act up”. It is clear that such an acceptance can amount to a waiver of a previous “no work as directed – no pay” directive. Thus in Gapes (supra) Deane J concluded at 33:

...it seems to me that the proper inferences to be drawn from all the evidence is that, in respect of the relevant period of three days, the bank waived the direction that the appellant cease work altogether and that the appellant was performing the duties which he in fact performed for the bank, with the consent of the bank. In these circumstances, the appellant was not “absent from duty without the consent of the bank” within cl 12(c). In so far as the three days in question are concerned, the only applicable express provision of the award was that a person in the position of the appellant is entitled to be paid an annual salary of the appropriate amount.

Similarly in Csomore, Rogers J said at 599:

Here, the plaintiffs were told not to work and that their work would not be accepted unless they carried out the full range of duties. Neither the statute nor the award has the effect of foisting upon the employer the obligation to accept a willingness on the part of the employee to perform some of the duties but not others. The employer is entitled to reject the offer of partial service and insist on the full range of duties being performed. It is not for the employee to make a choice of what he or she will do and not do. The employer may, of course, waive the entitlement to reject part performance, may accept the work done.

In New South Wales Teachers’ Federation v Department of Education [1980] IAS(CR) 767 the Industrial Commission of New South Wales in Court Session observed at 771-772:

The most significant of the agreed facts, in our opinion, are the facts that, in pursuance of their industrial campaign to improve working conditions, “teachers declined to perform their normal duties and in lieu thereof performed other activities” which, for the most part, were within the normal scope and functions of employment as a teacher but which, on the occasion in respect of which salary deductions were made, were performed in lieu of the duties assigned to them and after the teachers had declined to perform such duties”. Prima facie those facts would authorise the disputed deductions to be made from the teachers’ salaries if the 1975 decision of the Commission in Court Session in the Electricity Commission Case were followed.

I applied that passage in holding, in Independent Education Union v Canonical Administrators (supra) at p 30 that:

...where an employee refuses to perform a task within the scope of the contract of employment which he or she is directed to perform and elects to perform instead other work which would have to be done at some other, later, time, the employer is not to be taken to have accepted the benefit of that other work unless there has been an unequivocal indication that compliance with the earlier direction is no longer required. Mere inaction by the employer does not of itself amount to acceptance of the benefit of alternative work under the contract in place of that which the employee has been directed to perform.

Consistently with that reasoning, I do not regard the election by the employees concerned to remain at their respective stations after their refusal to comply with the directions of the relevant inspectors as giving rise to an acceptance in the requisite sense of any work which they may voluntarily have performed during the rest of the shift in question. However, it seems that an exception should be made in respect of Mr Maxwell after 1515 hours on 1 January 1996 when he complied with a direction from Station Officer Wynn to man the tele-boom. By that time, the circumstances which had prompted Mr Maxwell’s refusal to “act up” no longer obtained and the direction by Station Officer Wynn was to be regarded as countermanding or waiving Inspector Stevenson’s earlier order that Mr Maxwell was stood down without pay and was off shift. On this analysis, Mr Maxwell, alone of the employees considered in these reasons, was entitled to wages for that part of the disputed shift.

I shall adjourn the hearing of these applications to a date to be fixed to allow the parties to consider whether there are any other employees listed in the Schedule of Underpayments to the statement of claim in each application who are in similar case to Mr Maxwell. At the adjourned hearing, I shall also receive submissions as to whether the Court should exercise its discretion to impose a penalty on the respondent under either or both applications notwithstanding the applicant’s failure on the points of principle discussed above.

I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:

Appearances in VI 1164/96 and VI 1165/96

Counsel for the Applicant:	Ms M Richards

Solicitors for the Applicant:	Maurice Blackburn & Co



Counsel for the Respondent:	Mr F Parry

Solicitors for the Respondent:	Freehill Hollingdale & Page



Date of Hearing:	6 and 7 October 1997

Date of Judgment:	14 October 1998

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