Legal Updates

Federal Court Confirms School Student Minimum Shifts

Fri, 11 May 2012 04:07:00 GMT

In an important decision, the Federal Court today upheld the 14 September 2011 Fair Work Australia (FWA) decision of Shop, Distributive and Allied Employees Association [2011] FWAFB 6251 (see our earlier article: Fair Work approves 90 minute shifts for school children).

The FWA decision varied the General Retail Industry Award 2010 in order to permit school students to be employed on a casual basis for periods of less than three hours per day subject to certain conditions.The appeal to the Federal Court was based on an argument that Fair Work Australia’s decision was “...affected by jurisdictional error and should be quashed.” At [4] Tracey J stated: “I have concluded that FWA has not erred in the manner alleged and that no basis for interfering with its decision has been established.”

The Federal Court decision can be read here: Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480.

Contacts: Justin Zeeman & Allan Walsh

Annual Wage Review

Fri, 11 May 2012 03:36:00 GMT

Justice Ross, President of Fair Work Australia, today released a statement confirming the arrangements for consultations regarding the 2011/2012 Annual Wage Review.

Final consultations are scheduled to occur on 14 and 21 May 2012. The consultations: “are for the purpose of discussing, explaining and amplifying submissions already made. New material will not normally be accepted.”Further information regarding the annual wage review is available on the Fair Work Australia website.

Contacts: Justin Zeeman & Allan Walsh

Work Health and Safety Update

Fri, 11 May 2012 03:51:00 GMT

Further to the delay which we commented on in an earlier article (see: Harmonised WH&S Laws: Tasmanian Delay) there have been two very important developments in recent weeks regarding work, health and safety laws in Tasmania.

Firstly, the Work Health and Safety Act 2012 (Tas) received royal assent on 18 April 2012. As outlined in section 2, it will commence on 1 January 2013.

Secondly, the Work Health and Safety (Transitional and Consequential Provisions) Act 2012 received royal assent on 4 May 2012. As confirmed in section 2: “This Act commences on the day on which the Work Health and Safety Act 2012 commences.”

As detailed in an earlier article (see: Harmonised WH&S Model Laws Update: New Duty for Tasmanian Officers) the legislation could have a large impact on Tasmanian businesses.

Contacts: Justin Zeeman & Allan Walsh

Tasmanian Sports Law Conference

Sun, 04 Mar 2012 23:03:00 GMT

The Australian and New Zealand Sports Law Association (ANZSLA) will be holding a presentation on governance issues in sport, including the legal obligations, risks and liabilities of Board members.

The presentation will be by Andrew Gibson, Lecturer at Southern Cross University and ANZSLA Director.

This event also provides an opportunity to network with others in the industry and refreshments will be served from 7pm.

A copy of the flyer is available here.

Details

When: Thursday 12 April 2012. 6:00pm to 8:00pm (doors open 5:45pm).

Where: Century Room, Blundstone Arena Function Centre, 15 Derwent Street, Bellerive.

RSVP: Friday 6 April 2012, anzsla@anzsla.com

Cost: There is no charge for this event.

About ANZSLA

ANZSLA is the premier not-for-profit sports law organisation in the Australasian region, and is dedicated to providing networking opportunities, advocacy and education about legal issues in sport. Formed in 1990, ANZSLA now has a membership that includes lawyers, administrators, academics, government representatives and students, with membership open to anyone with an interest in sport. More information can be obtained from the ANZSLA website.

Contact: Allan Walsh

Can an employer assert that LinkedIn connections constitute confidential information?

Wed, 14 Mar 2012 02:31:00 GMT

An article on The Age website on 1 March 2012, amongst other things, raised the question: after an employee’s employment has been terminated, can their former employer force him/her to remove clients of the employer from his/her LinkedIn connections?

A similar argument to this was partially considered in the United States in Sasqua Group v. Courtney (E.D.N.Y. Aug. 2, 2010) In this decision, Magistrate Judge A. Kathleen Thomson found that the information contained in Sasqua Group’s database should “not be afforded trade secret protection…”. Her reasoning was based on the fact that the information sought to be protected was widely available on websites including LinkedIn.

In Australia, a similar cause of action is breach of confidence. The elements of which were stated in Coco v AN Clark (Engineers) Ltd [1969] RPC 41; (1968) 1A IPR 587; [1968] FSR 415 (a case which has been extensively followed in Australia: see the Lawcite results). These elements were summarised in Australia by Gummow J at 443 of Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434, as follows:

(i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information: ... It may also be necessary, as Megarry J thought probably was the case (Coco v A N Clark (Engineers) Ltd (1969) RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff. [citations omitted]

The problematical issues with attempting to protect client lists which are listed as connections on LinkedIn are the second and third elements listed above. In short, it will be difficult to afford protection to such information because it would be freely available and public knowledge to all people who viewed the employee’s profile page; plus the circumstances in which the information is received is not one which imports an obligation of confidence.

Conclusion

The conclusion to be drawn from the above is that after termination of employment it may be very difficult to prevent an employee communicating with clients of the employer. Consequently, if an employer wishes to protect this information, it is advisable to take steps at the initiation of the employment relationship. One suggested solution is to make it an express term of the employment contract that employees change their LinkedIn account settings so their connections are hidden, thereby retaining the necessary quality of confidentiality.

Contacts: Justin Zeeman & Allan Walsh

Termination for Falsified Medical Certificate

Tue, 28 Feb 2012 02:55:00 GMT

On 14 February Commissioner Deegan handed down the Fair Work Australia decision of Tokoda v Westpac Banking Corporation [2012] FWA 1262 which considered the termination by Westpac of the employment of an employee who had falsified a medical certificate.

Evidence

Westpac suspected a medical certificate provided by the employee had been falsified. Consequently it interviewed the employee and put the allegation to her. After denying it in the interview, the employee subsequently admitted the falsification in a written reply to Westpac. The employee attempted to justify the falsification by alleging that she had been the victim of workplace bullying and unfair treatment. Westpac investigated these claims and concluded the allegations were unsubstantiated. After this investigation, Westpac gave consideration to the falsified medical certificate. The employee’s employment was then terminated on the basis that her conduct had been dishonest and fraudulent and breached Westpac’s code of conduct.

Decision

Commissioner Deegan determined that there was a valid reason for termination based on the falsified medical certificate. The Commissioner rejected in large part the evidence of the employee in relation to the bullying and mistreatment allegations, and “…did not find the Applicant’s evidence persuasive in relation to her reasons for falsifying the medical certificate. Her evidence was contradictory and her story changed whenever she was shown that her version was not supported by the evidence.”

The Commissioner held that Westpac had followed all other requirements of the Fair Work Act 2009, and consequently dismissed the application.

Contacts: Justin Zeeman & Allan Walsh

Equal Pay Decision

Wed, 01 Feb 2012 01:27:00 GMT

Fair Work Australia has today handed down a major decision in relation to the wage rates of social and community services workers under the Social, Community, Home Care and Disability Services Industry Award 2010.

The Full Bench, (with Vice President Watson dissenting), determined that the rates in the modern award will be increased as follows:

Level 2—19%

Level 3—22%

Level 4—28%

Level 5—33%

Level 6—36%

Level 7—38%

Level 8—41%

These loadings are to be phased in over an eight year period in nine equal instalments, commencing on 1 December 2012 and ending on 1 December 2020.

The full decision is available from the Fair Work Australia website.

Contacts: Justin Zeeman & Allan Walsh

Worker representation and participation guide published by Safe Work Australia

Wed, 11 Jan 2012 03:14:00 GMT

On 11 January 2012 Safe Work Australia published on its website the Worker Representation and Participation Guide.

The guide has detailed information relating to the representation and participation of workers in health and safety matters in the workplace including:

- establishing work groups;
- electing health and safety representatives;
- functions and powers of health and safety representatives; and
- detailed information on provisional improvement notices.

Further details can be accessed on the Safe Work Australia website.

Full Bench considers obligation of redeployment for purposes of genuine redundancy

Fri, 23 Dec 2011 02:54:00 GMT

In an earlier article we reported on the Fair Work Australia decision of Iryna Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215 which involved an unfair dismissal application, and in particular, the need to consult in redundancy situations (see: Redundancy Consultation).

This decision was appealed, and the Full Bench has handed down its decision today (Jenny Craig Weight Loss Centres Pty Ltd v I Margolina [2011] FWFB 9137). The appeal raised two questions: whether the respondent was a person protected from unfair dismissal and, if so, whether the application must nevertheless fail because the dismissal was a genuine redundancy.

Whilst the Full Bench agreed with the appellant’s argument that the Commissioner at first instance erred in finding the respondent was a person protected from unfair dismissal on the basis of being covered by a modern award, it nevertheless found that the applicant was protected on the basis that her income was less than the high income threshold.

In relation to the second question, the Full Bench upheld Commissioner Ryan’s finding that there was not a genuine redundancy within the meaning of s389 of the Fair Work Act 2009.

The Appellant argued it would not have been reasonable to redeploy the Respondent, and therefore it was a genuine redundancy pursuant to s389(2). After reviewing the evidence, and in particular the cross examination of the Respondent, the Full Bench concluded:

[28] In this case it is clear that there was a centre leader position available. The respondent had the necessary skills, qualifications and experience and she had no objection based on location. While the income was much lower and the responsibility much less than for a regional manager, she gave evidence that she would have accepted a centre leader role for reasons which we have referred to above. There is no reason to disbelieve the respondent’s evidence, even though she has now taken a leadership role, which appears to be similar to her former role with the appellant.

[29] We agree with the Commissioner’s conclusion that it would have been reasonable in all the circumstances for the respondent to have been redeployed. It follows that the dismissal was not a case of genuine redundancy.

The decision reiterates the importance of identifying available positions and consultation with employees whose original position is made redundant - even if it is considered that the employee is unlikely to accept any alternative available position(s).

Contacts: Justin Zeeman & Allan Walsh

Scope of managerial prerogative

Thu, 15 Dec 2011 23:43:00 GMT

In Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited [2011] FWA 8288 Fair Work Australia confirmed the test for determining the scope of management prerogative.

Vice President Lawler found that absent any constraint(s) imposed by a statute, an award, a statutory agreement or a contract of employment, an employer can manage its own business - unless it is seeking from an employee something that is unjust or unreasonable.

The test for what is unjust or unreasonable was taken from Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188. It is extracted at [11], as follows:

The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable. The ACTU submitted to us that we should apply the test as to whether the demand of the employer was just and equitable having regard to all the circumstances. It is our view that under any given set of facts the test suggested by the ACTU would not lead to a different decision from the test which the Commission has applied over time. Accordingly in reaching our decision we have approached the matter from the point of view of making a judgement whether the request of the SRA that the XPT be manned by one man is unjust or unreasonable.

At [12] Lawler VP stated:

I proceed on the basis that an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer, could have made the decision in question.

This decision highlights that whilst managerial prerogative has a wide scope, it still needs to be exercised in a just and reasonable manner.

Contacts: Justin Zeeman & Allan Walsh

WH&S: Code of Practice Update

Thu, 15 Dec 2011 23:57:00 GMT

Safe Work Australia has announced that on 8 December 2011 members from each jurisdiction, as part of the WH&S Laws harmonisation process, endorsed by majority (subject to final technical and editorial changes) three Codes of Practice:

• First Aid in the Workplace

• Managing Risks in Construction Work

• Preventing Falls in Housing Construction

Once the codes have been approved by the Ministerial Council, they will become model codes.

Further details can be accessed on the Safe Work Australia website.

Contacts: Justin Zeeman & Allan Walsh

Harmonised WH&S Laws: Tasmanian Delay

Fri, 02 Dec 2011 05:46:00 GMT

On Thursday 1 December 2011 the Tasmanian Legislative Council voted to delay the commencement of the Work Health and Safety Bill 2011 (the Bill) for 12 months.

As we reported on 22 November 2011 (Harmonised WH&S Model Laws Update: New Duty for Tasmanian Officers), the Bill was scheduled to commence on 1 January 2012. However, the Independent member for Huon, Paul Harriss MLC introduced an amendment to delay commencement until 1 January 2013. The amendment succeeded in an almost unanimous vote (with only the two Government members and Independent Ivan Dean voting against it).

All other aspects of the Bill were supported by the Legislative Council.

The Bill will now return to the House of Assembly (which is scheduled to next sit on 6 March 2012).

WH&S Model Law Update: South Australian Delay

Fri, 02 Dec 2011 05:46:00 GMT

The South Australian Upper House has voted to adjourn the debate on the Work, Health and Safety Bill until the start of 2012 – despite the South Australian Government seeking to have debate completed this week to enable the law to commence on 1 January 2012.

The delay was confirmed by Liberal MLC Rob Lucas on Twitter on 29 November 2011. The delay creates further doubt as to when the model laws will commence.

Harmonised WH&S Model Laws Update: New Duty for Tasmanian Officers

Fri, 02 Dec 2011 05:47:00 GMT

Introduction

The second reading of the Work Health and Safety Bill 2011 is scheduled to take place today in the Tasmanian Legislative Council. This will put Tasmania one step closer to adopting the new harmonised work health and safety laws (“model laws”) which, if enacted, will replace the Workplace Health & Safety Act 1995 (Tas) (“WHS Act”), and result in a new regime for Tasmanian employers.

Increased Risk for Company Directors

Whilst the model laws introduce a number of key changes, perhaps the most significant impact on corporate governance is the introduction of a health and safety duty on officers of an organisation - associated with a substantial penalty regime for breaching this duty.

Existing Obligation

Currently, under the WHS Act, there is no positive obligation on a director to acquire knowledge or exercise due diligence in respect to a company’s obligations. However, if a body corporate contravenes or fails to comply with a provision, each director is taken to have contravened or failed to comply with that provision, unless the director satisfies a court that:

(a) the body corporate contravened/failed to comply with the provision without the director's knowledge and the director was not reasonably able to have acquired that knowledge; or

(b) the director used all due diligence to prevent the contravention/failure by the body corporate.

In casting “knowledge” and “due diligence” as defences, and not as positive obligations, the practical risk is that these requirements can escape the attention of directors.

New Obligation

The approach of the model laws is different to the WHS Act in two significant ways:

(a) the definition of officers is broader than merely directors of a body corporate; and

(b) a positive obligation is imposed on officers to exercise “due diligence” to ensure a PCBU complies with its duties and obligations.

(Note: PCBU, under the model laws, means “a person who conducts a business or undertaking” – this includes not only employers, but also non-employer entities (such as contractors and self-employed persons who conduct a business or undertaking). Importantly, not for profit organisations and partnerships also fall within the meaning of a PCBU.)

Meaning of Officer

Under the model laws officer means:

(a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or

(b) an officer of the Crown within the meaning of section 247; or

other than an elected member of a local authority acting in that capacity.

By using the definition of officer from the Corporations Act 2001, the class of duty holders extends beyond that of a company director and includes:

(a) a director or secretary of the corporation; or

(b) a person:

(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

(ii) who has the capacity to affect significantly the corporation’s financial standing; or

(iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or

(d) an administrator of the corporation; or

(e) an administrator of a deed of company arrangement executed by the corporation; or

(f) a liquidator of the corporation; or

(g) a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

In addition, an officer of an entity that is neither an individual nor a corporation means:

(a) an office holder of the unincorporated association if the entity is an unincorporated association; or

(b) a person:

(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

(ii) who has the capacity to affect significantly the entity’s financial standing.

Due Diligence

Under the model laws an officer must exercise “due diligence” to ensure that a PCBU complies with its duties and obligations. In the National review into model occupational health and safety laws: first report to the Workplace Relations Ministers’ Council, October 2008, the following rationale for the introduction of this positive duty on officers was given (at paragraphs 8.29-8.31):

The provision creates a positive duty which is seen to apply immediately, rather than accountability only applying after a contravention by the company. The duty would make clear that the officer must be proactive in taking steps to ensure compliance by the company. The standard of ‘due diligence’ is well known by those who would be sufficiently directing or influencing the decisions of the company as to be defined as ‘officers’.

By making the officer liable only for his or her own acts or omissions would provide a sense of control by the officer over their personal liability and a sense of fairness. These elements are each concerns expressed in relation to the ‘attributed’ liability of an officer.

We, therefore, consider that the first option is more likely than the other options to ensure appropriate, proactive, steps are taken by an officer for compliance by the company with the duties of care placed on the company.

In order to discharge the obligation to exercise due diligence the model laws require that an officer take reasonable steps to:

(a) acquire and keep up-to-date knowledge of work health and safety matters;

(b) gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations;

(c) ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking;

(d) ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;

(e) ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

(f) verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

Practical Steps

Some examples of practical steps that can assist in addressing these requirements include:

(a) Reviewing the entire undertaking/organisation to correctly identify who is an officer for the purposes of the model laws;

(b) Providing detailed induction training for new officers;

(d) Putting in place systems that ensure officers are kept up to date with legislative and industry changes; and

(e) Reviewing, or if necessary introducing, work health and safety policies to ensure a PCBU complies with its duties and obligations under the model laws.

(Note: These practical steps are presented as an explanatory guide only and should not be relied upon as legal advice. Each organisation/undertaking is different and will be faced with unique requirements and challenges.)

Penalties

An important consideration for officers under the model laws is the significant increase in penalties. Under the harmonised regime there will be three categories of offences in respect to breaches of health and safety duties. The most serious category provides for the imposition on officers of a maximum penalty of $600,000 and/or imprisonment of up to 5 years.

Category	Description	Penalty for Officers
Category 1	Reckless conduct exposing an individual to a risk of death or serious injury or illness, engaged in without reasonable excuse.	Fine up to $600,000 and/or up to 5 years imprisonment.
Category 2	Failure to comply with a health and safety duty and exposing an individual to risk of death or serious illness or injury.	Fine up to $300,000.
Category 3	Failure to comply with a health and safety duty.	Fine up to $100,000.

Commencement Date

Western Australia and Victoria are yet to introduce the model laws into their respective parliaments. New South Wales, Queensland and the Australian Capital Territory have already passed legislation adopting the model laws and South Australia and the Northern Territory have introduced bills into their respective parliaments.

The intention is for the model laws to commence nationally on 1 January 2012, however there is some doubt as to whether or not this will occur. For example, Western Australia has asked for a reconsideration of this date, and Victoria has proposed a 12 month delay.

Further, the Federal Workplace Relations Minister, Chris Evans, announced on 9 November 2011 that businesses in sectors where the Regulations introduced a “significantly different set of duties” would have a transitional period within which to prepare for compliance with new duties.

Conclusion

Given the significant penalties that officers face under the model laws it is essential that any individual falling within the meaning of this term take prompt steps to ensure compliance with the obligation to exercise due diligence.

Heritage Representations by Email

Mon, 21 Nov 2011 00:00:00 GMT

Overview

The recent Resource Management and Planning Appeals Tribunal (“RMPAT”) decision of Heritage Protection Society (Tasmania) Inc v Tasmanian Heritage Council and Ireneinc Planning, Heritage Protection Society (Tasmania) Inc v Launceston City Council and Ireneinc Planning [2011] TASRMPAT 165 (“Heritage Protection Society v Tasmanian Heritage Council”) reinforces our earlier article (see: Planning Representations by Email) and makes the logical extension that the law in relation to representations by email extends to “submissions” under the Historic Cultural Heritage Act 1995 (“the Heritage Act”).

Background

The decision involved an appeal by the Heritage Protection Society of a decision of the Tasmanian Heritage Council to approve a works application with respect to a property owned by a third party.

A preliminary question issue arose: had a valid submission pursuant to the Heritage Act been made by email, and therefore did RMPAT have jurisdiction to hear and determine an appeal.

Section 43(1)(b) of the Heritage Act confers a right of appeal in respect to any decision approving or refusing a works application upon any person who made a submission under section 35.Whilst the term “submission” was used in section 35 rather than “representation”, the Tribunal’s view was that a submission was indistinguishable from a representation in the context of the Land Use Planning and Approvals Act 1993.

The works application was advertised and specifically stated that written representations could be made to the General Manager until 5pm on 5 August 2011, specifically the advertising did not provide details of an email address. The Heritage Protection Society forwarded an email at 4.52pm on 5 August, as the Tribunal noted – “almost at the last possible moment of the last possible day” for making a submission to the Council.

RMPAT followed its previous decision of KM Ravich v King Island Council and BH Hassing [2007] TASRMPAT 226 which discusses planning representations and the Electronic Transactions Act 2000 (“ET Act”).The ET Act deals with, amongst other things, the transmission of material, including submissions (by email) which would otherwise be in writing.

Importantly the ET Act provides that where a person is permitted to give information in writing it can only be done by email when the person consents to receive such information by email. In Heritage Protection Society v Tasmanian Heritage Council, RMPAT held that the Council had not consented to receipt of a submission by email. There was no express or unequivocal consent and nor could it be reasonably inferred from the advertising that such consent was given. The only address given was a postal address.

RMPAT was not persuaded from its conclusion notwithstanding there was an apparent practice of the Council’s Planning Department to accept representations by email.In conclusion RMPAT was of the view that there was not a valid submission in terms of the Heritage Act and therefore RMPAT had no jurisdiction to determine any appeal in relation to the works application.

Discussion

As we have previously expressed, given the importance of representations and submissions it is vital for those persons who wish to make a representation in relation to a planning application, or a submission in relation to a works application, that they comply with the proper means of lodging such representation or submission. A careful review of advertisements should be undertaken to ensure that representations/submissions are made in an appropriate manner as failure do so has major consequences with respect to the ability to file an appeal after a decision has been made.

Contact: Phillip Zeeman

Circumstances in which provision of accommodation is payment

Thu, 15 Dec 2011 04:59:00 GMT

The Federal Magistrates Court of Australia decision of CFMEU v Mammoet Australia Pty Ltd [2011] FMCA 802 held that the prohibition on payment during industrial action in the Fair Work Act 2009 (FW Act) can extend to prohibiting provision of accommodation.

Circumstances

The CFMEU and its employees at the Pluto Project were bound by the Mammoet Australia Pty Ltd Pluto Project Greenfields Agreement (the Agreement). A term of the Agreement required Mammoet to provide “distant workers” (which the employees were) a living away from home allowance, or, alternatively, suitable accommodation.

On 21 April 2010 the CFMEU notified Mammoet its employees were to take protected industrial action with effect from 28 April 2010. In response, Mammoet advised the employees it would not provide them with accommodation for the duration of the action.

Prohibition

Subsection 470(1) of the FW Act provides:

If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.

Decision

At [70] – [81] Lucev FM reviewed various authorities, to consider the meaning of “payment” as used in s470(1) of the FW Act. After reviewing these authorities Lucev FM held:

...the Court is of the view that the provision of the Accommodation is a payment which Mammoet is prohibited from making to the Affected Employees by reason of s.470(1) of the FW Act.

Contacts: Justin Zeeman & Allan Walsh

FIFA Laws

Thu, 10 Nov 2011 04:21:00 GMT

On 8 November 2011 eurosport.com published an article stating that FIFA secretary general Jerome Valcke has told Brazil’s Congress that they must “hurry up and pass a package of new laws if the 2014 World Cup is to go ahead..."

Normal Practice

Whilst this comment may come as a surprise to a lot of people, it is normal practice.

When bidding to host a major event, such as the FIFA World Cup or the Olympic Games, the relevant cities or countries must agree to comply with a large number of conditions, which includes enacting specific laws.Example

An example of the conditions which bidding cities/countries must agree to can be seen in the “2018 Candidature Procedure and Questionnaire” (which related to the 2018 Winter Olympic Games). A particular example is on page 125 and relates to laws to protect ambush marketing. It requires bidding cities to:

Provide (a) written guarantee(s) from the relevant government authorities confirming that the legislation necessary to effectively reduce and sanction ambush marketing (e.g. preventing competitors of Olympic sponsors from engaging in unfair competition), and, during the period beginning two weeks before the Opening Ceremony to the Closing Ceremony of the Olympic Winter Games eliminate street vending, control advertising space (e.g. billboards, advertising on public transport, etc.) as well as air space (to ensure no publicity is allowed in such airspace) will be passed as soon as possible but no later than 1 January 2016.

Reasoning

In large parts these laws are commercially driven and designed to:

- Stop the re-sale of tickets;

- Impose entry conditions on spectators;

- Prevent non-sponsors from “ambush marketing”;

- Impose penalties for the sale of private merchandise; and

- Address other relevant issues.

The high cost of staging major events makes it important to provide protection for sponsors and other financial contributors. If there is no such protection, there will be no sponsors, and if there are no sponsors, then the city/country will not be able to afford to host the event.The protections are not just issues for major events: some are also relevant to national, state and local events.

Contact: Allan Walsh

The Importance of Following High Court Precedents

Wed, 09 Nov 2011 00:31:00 GMT

If there was ever any doubt, which it is hard to imagine there was, that courts in Australia are required to follow decisions of the High Court of Australia, it has been dispelled by the High Court in recently published reasons for decision in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 (28 October 2011) (“Western Export Services”).

Justices Gummow, Hayden and Bell, in a short dismissal of a special leave application, made it clear that intermediate appellate courts and primary judges are bound to follow High Court precedents.

Western Export Services specifically dealt with the well known authority of Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337.

The court stated at 3: “Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.”

Further at 4, the Court stated: “The position of Codelfa, as a binding authority, was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 and it should not have been necessary to reiterate the point here.”

Conclusion

What appears to be clear from this very short decision is the High Court’s disapproval of intermediate appellate courts and primary judges not strictly adhering to the High Court’s authority. The High Court reinforced that it is at the top of the court hierarchy in Australia.

Contact: Phillip Zeeman

Tasmanian Long Service Leave Update

Thu, 27 Oct 2011 05:09:00 GMT

As foreshadowed in an earlier article (see: Proposed earlier access to Long Service Leave for Tasmanian private sector workers), the Tasmanian Government has taken steps to amend the Long Service Leave Act 1976 (Tas) to allow private sector employees access to long service leave after 10 years of continuous employment with their employer.

The Long Service Leave Amendment Bill 2011 was introduced into Parliament at the end of September 2011 and passed the House of Assembly on 25 October 2011. Further details of the proposed amendment can be found in our earlier article.

Contact: Justin Zeeman

The importance of properly identifying the actual applicant in planning permit applications

Tue, 25 Oct 2011 05:01:00 GMT

Introduction

The Resource Management and Planning Appeals Tribunal (‘RMPAT’) has recently published a decision which highlights one of the risks of consultants being named as parties in planning appeals on behalf of their clients.

In CJ and ZM Blackburn v Hobart City Council and Bevan Rees Architect & Ors [2011] TASRMPAT 148 (10 October 2011) (‘Blackburn v Hobart City Council’) RMPAT granted an application made by a consultant to have his client substituted in his place as a party in a planning appeal.

The practical reason for the consultant to have his client substituted as a party to the appeal was to avoid the consequences of a costs order that had been made against him.

Background

The consultant had made an application for a town planning permit in his own name for a client which was subsequently granted.

Two third party representors lodged an appeal with RMPAT which, after conducting a hearing, set aside the decision to grant the permit and replaced that decision with a refusal.

The Appellants then successfully applied for costs against the consultant who, it would appear, was a party in the appeal because he was the applicant for the permit.

The costs could not be agreed and were subsequently taxed by the Registrar of RMPAT for a total amount of $10,874.88.

Upon the issuing of the Certificate of Taxation the consultant then applied to RMPAT to have his client substituted as the party to the Appeal in his place. The failure to do so successfully would have meant the consultant being personally responsible for the payment of the certified costs.

It was clear from the evidence produced by the consultant that he was acting as an agent for his client and had no personal interest in the matter. RMPAT was satisfied in the circumstances that it was appropriate to have his client substituted in his place.

RMPAT stated that “[t]his situation serves to illustrate the care that is needed to ensure the ‘correct’ entities are actually parties to the appeal.”

Discussion

Blackburn v Hobart City Council highlights obvious issue with respect to third party consultants making applications for planning permits.

A common practice would appear to be that when consultants make applications to planning authorities such applications are made in their own name on behalf of their clients when engaged to obtain planning permits.

Given that third party representors and applicants have a right to appeal pursuant to section 61 of the Land Use Planning and Approvals Act 1993, the consultant, if they have applied for the permit, is named as a party to the appeal. It is possible at an early stage to have the true applicant for the permit substituted as a party to the appeal, but in practice this is often overlooked.

This raises the issue of why consultants name themselves as applicants for planning permits when they are clearly not the applicant and it is not necessary - especially when Council development application forms provide for the applicant’s name as well as details of the owner and a contact person.

A better practice for consultants would be not to name themselves as applicants, but, rather name their clients and then nominate themselves as the contact person. This would allow planning authorities to contact the consultant with respect to requests for further information and/or any other questions that may arise without exposing the consultants to potential personal liability.

This would then avoid the consequences of any adverse orders made by RMPAT personally against a consultant who is a party to an appeal. This may include costs orders (which can be substituted) or orders to produce information which is beyond a consultant’s control.

Whilst there was a successful substitution in Blackburn v Hobart City Council, a party who obtains a costs order may resist having the consultant removed as a party to an appeal if they become aware that the ‘client’ party for example is insolvent and unable to meet the costs order. That is something RMPAT would no doubt have to weigh in the exercise of its discretion in an application to remove the consultant as a named party.

Conclusion

When applying for a planning permit consultants should name their client as the applicant and themselves as the contact person. This avoids the naming of the consultant as a party in a planning appeal and the possible adverse consequences of that.

Contact: Phillip Zeeman

Planning Representations by Email

Mon, 21 Nov 2011 00:01:00 GMT

Introduction

The issue of making a representation to a Planning Authority by email has recently arisen and bears some reflection.

The making of a valid representation in relation to a discretionary planning permit within the meaning of section 57(5) of the Land Use Planning and Approvals Act 1993 (‘LUPA’) and a representation in relation to an amendment to a planning scheme within the meaning of section 39 of LUPA is important in terms of the planning authority’s obligation to consider the representation and the rights of appeal beyond the decision made by the planning authority.

In some circumstances a ‘representation’ by way of email is not a valid representation.

Background

By way of illustration, the Resource Management and Planning Appeals Tribunal (‘RMPAT’) decision of KM Ravich v King Island Council and BH Hassing [2007] TASRMPAT 226 ('Ravich v King Island') discusses this issue.

Ravich v King Island considered whether a valid representation had been made by email and therefore whether RMPAT had jurisdiction to hear and determine an appeal.

Ms Ravich appealed a decision of the King Island Council with respect to a development application made by a third party.

Ms Ravich‘s right to appeal was said to arise out of a representation she had made by email within the meaning of section 57(5) of LUPA, and such a right of appeal arising under section 61(5) of LUPA.

Issues of fact arose as to whether or not the email had been received by the King Island Council, (which RMPAT found it had not), but in support of a finding of no jurisdiction RMPAT made a number of observations with respect to the email transmission of representations.

The Electronic Transactions Act 2000 (‘ET Act’) deals with, amongst other things, the transmission of material (including representations) by email which would otherwise be in writing.

Importantly the ET Act provides that where a person is permitted to give information in writing it can only be done by email when the person (the King Island Council in this matter) consents to receive such information by email.

The King Island Council, in compliance with its obligation to provide details of where and how representations can be lodged, provided a postal address but did not provide an email address.

RMPAT was of the view that if the King Island Council had intended to receive representations electronically an email address would have been provided. The fact that there was an absence of an email address may have been thought to be outmoded in 2007 (the year Ravich v King Island Council was delivered) was not the point but rather RMPAT expressed the view that it manifested a clear intention not to consent to the receipt of representations electronically.

The failure to lodge the representation in writing as required by the advertising process meant that no representation was made, Ms Ravich had no standing to bring the appeal, and the appeal was therefore dismissed.

Discussion

A review of the public notices in recent editions of locally circulating newspapers shows a number of Councils advertising an email address for the making of representations and other Councils not providing email addresses. There is no uniform approach across the state. The lack of a uniform approach may be a reflection of resource allocation to IT budgets but it can lead to some confusion.

Interestingly, one council advertised an email address for making representations with respect to development applications but no email address with respect to planning scheme amendments. With respect to the planning scheme amendments, a postal address was provided. If an email was communicated to the planning authority for the planning scheme amendment then it would not be a representation within the meaning of section 39 of LUPA - although that point may well be open to argument depending on the facts of a particular matter. At the very least, such a situation has the potential to cause confusion and a uniform approach within a Council would be a better outcome.

Given the importance of representations, it is vital to those persons making a representation that they comply with the proper means of lodging a representation (either by mail or email), and for Councils receiving representations to ensure they are made in the appropriate manner, that is, they should not accept emails when the representation is only via mail.

Contact: Phillip Zeeman

Successful ANZSLA Conference

Fri, 21 Oct 2011 01:07:00 GMT

I have just returned from the annual conference of the Australian and New Zealand Sports Law Association (ANZSLA – website: http://www.anzsla.com/). The conference was held in Queenstown, New Zealand and its theme was “Drawing the Line: Ethics in Sport”. It proved to be a very interesting topic.

Over the two days, the sessions covered:

- Ethical challenges for sport (presented by Peter Miskimmin);
- Issues facing major events (Barry Maister, Peter Cox, Stuart Corbishley, Ryan Gauthier);
- The threats to integrity posed by cheating and match fixing (James Wood AO QC, Malcolm Speed), followed by a panel discussion on the same topic (Aaron Lloyd, Nick Davidson QC, and Catherine Ordway);
- Anti-siphoning laws in Australia and New Zealand (Deborah Healey);
- Doping - with a particular focus on the WADA Code (John Marshall SC, Howard Jacobs, Paul David) followed by a panel discussion on the same topic (Aurora Andruska, Graeme Steel, and Richard Patterson providing the athlete’s perspective);
- The legal issues faced by trans-Tasman elite sport competitions (Hayden Opie and Elizabeth Toomey in an entertaining double act); and
- Integrity issues facing chief executive officers (Raelene Castle, Kieran Turner, David Garnsey and Fiona Pickering, chaired by Maria Clarke);
- A review of sport law cases and legislative changes over the last 12 months (Darren Mullaly, Rebecca Hooper and Andy Gibson).

As can be seen, the speakers and panel members were influential, highly qualified individuals of an exceptional calibre. This served to make the presentations and discussions particularly relevant to sporting organisations and the issues they currently face.

Contact: Allan Walsh

Model Work Health and Safety Bill introduced into Tasmanian Parliament

Tue, 18 Oct 2011 06:09:00 GMT

The Work Health and Safety Bill and the Work Health and Safety (Transitional and Consequential Provisions) Bill were introduced into the Tasmanian Parliament today. Whilst both Bills commence on a day to be proclaimed, it is expected that they will commence on 1 January 2011.

The Work Health and Safety Bill mirrors the Commonwealth Work Health and Safety Bill 2011, which is aimed at harmonising national occupational health and safety laws.

New South Wales, Queensland and the Australian Capital Territory have already passed legislation adopting the national model. South Australia and Tasmania are the only two other jurisdictions to have introduced model bills into their respective Parliaments.

The explanatory memorandum accompanying the Commonwealth Bill states that the Bill includes the following key elements:

• a primary duty of care requiring persons conducting a business or undertaking (PCBUs) to ensure, so far as is reasonably practicable, the health and safety of workers and others who may be affected by the carrying out of work;
• duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work;
• a requirement that ‘officers’ exercise ‘due diligence’ to ensure compliance;
• reporting requirements for ‘notifiable incidents’ such as the serious illness, injury or death of persons and dangerous incidents arising out of the conduct of a business or undertaking;
• a framework to establish a general scheme for authorisations such as licences, permits and registrations (e.g. for persons engaged in high risk work or users of certain plant or substances);
• provision for consultation on work health and safety matters, participation and representation provisions;
• provision for the resolution of work health and safety issues;
• protection against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the Bill;
• an entry permit scheme that allows authorised permit holders to:

o inquire into suspected contraventions of work health and safety laws affecting workers who are members, or eligible to be members of the relevant union and whose interests the union is entitled to represent; and
o consult and advise such workers about work health and safety matters.

• provision for enforcement and compliance including a compliance role for work health and safety inspectors; and
• regulation-making powers and administrative processes including mechanisms for improving cross-jurisdictional cooperation.

Assuming that both Bills are enacted, this will result in a significant change in respect to the obligations on Tasmanian employers and how they manage their businesses.

Contact: Justin Zeeman

FWA upholds employer's right to conduct drug and alcohol testing

Fri, 04 Nov 2011 06:02:00 GMT

On 7 October 2011 a Full Bench of Fair Work Australia (FWA) confirmed an employer’s ability to conduct drug and alcohol testing of an employee: Wagstaff Piling Pty Ltd; Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union

The employer was bound by the terms of an agreement that contained a clause entitled “48. DRUGS & ALCOHOL POLICY”. That clause stated:

The parties acknowledge the affect that employees with drug and/or alcohol problems can cause in the workplace. Any employee with such a problem can lead to a loss in productivity, an unsafe workplace and loss of morale amongst the company. To this end the parties encourage such persons with a problem to seek help.

To that end the parties agree to apply the Drug & Alcohol policy as contained in Appendix I.”
Nothing in Appendix l expressly dealt with the ability of the employer to require an employee to submit to a drug and alcohol test. The position of the employer was that it had such a right, whereas the Union’s position was that the agreement must be read as prohibiting mandatory drug and alcohol testing.

In determining the matter the Full Bench held that clause 48 did not operate to limit drug and alcohol testing, or any other safety initiative. Further the Full Bench stated that the risks to employee safety posed by drug and alcohol use have long been recognised by this Tribunal and compulsory drug and alcohol testing is, of itself, not so extraordinary that it could not be argued to be a reasonable employer instruction.

Whilst the decision related to the wording of a specific agreement, it reinforces two important matters:

• The importance of having an alcohol and drug testing regime in certain industries; and
• In order to avoid disputes, the rights and responsibilities of all parties under such regime should be clearly expressed and capable of clear application.

Contact: Justin Zeeman

Sports Betting and Match Fixing Developments

Tue, 20 Sep 2011 02:27:00 GMT

Introduction

Gambling with inside information, match fixing and other forms of cheating threaten the integrity of sports. Victoria, with the Gambling Regulation Act 2003 (Vic), is currently the only Australian State with detailed sports betting legislation (as opposed to racing betting). A number of recent developments have increased the momentum for a coordinated national approach to eliminate the threats posed.

The Coalition of Major Professional and Participation Sports (COMPPS)

COMPPS is an organisation comprised of Cricket Australia, AFL, ARU, FFA, Netball Australia, NRL and Tennis Australia.

On 8 June 2011 the CEOs of each of the COMPPS sports endorsed a COMPPS Anti-Corruption Working Paper which made three main recommendations:

1. The Victorian legislation should be adopted Australia wide;

2. Sports should have the power to prohibit certain exotic or unusual bets; and

3. Criminal offences should be introduced specifically addressing cheating in sports.

Sport and Recreation Ministers’ Council (SRMC) Communiqué

On 10 June 2011 the SRMC released a communiqué confirming that they had agreed on a National Policy on Match-Fixing in Sport. According to the communiqué, the policy:

...represents a commitment by the Commonwealth and state and territory governments to work together to address the issue of inappropriate and fraudulent sports betting and match-fixing activities with the aim of protecting the integrity of sport.

The Policy is underpinned by the following agreed principles:

• A nationally consistent approach to deterring and dealing with match-fixing in Australia;

• Information sharing and highly efficient networks between governments, major sports, betting operators and law enforcers;

• Consistent national code of conduct principles for sport; and

• Active participation in international efforts to combat corruption in sport including an international code of conduct and in international body.

The communiqué recognised the support of COMPPS, the Australian Olympic Committee and sports betting organisations in the development of the policy.

Victorian Review

On 4 August 2011 the Victorian Government released the “Review of Sports Betting Regulation” which was conducted by Racing Victoria’s former chairman of stewards, Des Gleeson.

The review made 14 recommendations, including:

• A model code of conduct and guidelines for the conduct of education programs should be developed as a minimum standard for all sports;

• A national system should be implemented so there is consistency Australia wide in relation to sports betting;

• Sports controlling bodies should be monitored to ensure they are applying their integrity policies and processes; and

• There should be national level consideration of the retention and supply of betting information by sport betting providers.

Passing reference was also made to a ‘missing link’ of specific cheating legislation. Which, in the words of the review: “…would make it easier for Victoria Police to take action and also potentially act as a deterrent if significant penalties were attached.”

Standing Committee of Attorneys-General (SCAG)

On 21 & 22 July 2011 SCAG agreed to establish a Working Group to develop a proposal and timetable for a nationally consistent approach to criminal offences relating to match fixing.

NSW Law Reform Commission

On 26 August 2011 the NSW Law Reform Commission released a report entitled “Cheating at Gambling”. The report concluded:

- Sports betting has become a major industry in Australia;

- Match fixing and other forms of sports betting cheating undermines sport integrity;

- The sports betting market needs to be regulated and as transparent as possible; and

- Appropriate criminal offences are essential to eliminate corruption and cheating.

The report suggested two types of offences:

1. Offences concerning conduct impacting on the outcome of an event (or part of an event – for example, points margin, awarding of a penalty, etcetera); and

2. Offences concerning use of inside information to bet on events.

For both types of offences, the report recommended maximum penalties of up to 10 years imprisonment (in line with general fraud offences). The report included a draft Crimes Amendment (Cheating at Gambling) Bill 2011 which, if enacted, would introduce into the Crimes Act 1900 (NSW) the suggested offences. The NSW Government is currently considering the report.

Australian and New Zealand Sports Law Association (ANZSLA) Annual Conference

At the ANZSLA Annual Conference in Queenstown, New Zealand on 13 October 2011, Malcolm Speed, the Executive Director of COMPPS, and the Hon James Wood QC, the Chairperson of the NSW Law Reform Commission, will make a presentation entitled “Integrity in Sport – the problems of cheating and match fixing”. In light of the recent developments in Australia, and their involvement, this presentation is particularly pertinent.

I will be attending the conference, so I will post a further article afterwards.

Contact: Allan Walsh

Termination of Employment for Safety Breaches

Tue, 18 Oct 2011 06:55:00 GMT

What breach of safety requirements will constitute a valid reason for termination? Following are some recent examples.

IGA Distribution (Vic) Pty Ltd v Cong Nguyen [2011] FWAFB 4070 (copy available here)

The Respondent was employed by the Applicant as a forklift driver in a distribution centre. On 22 September 2010 there was a collision between the Applicant’s forklift and another forklift. Following the collision, there was an investigation by the Company which concluded that the collision was not an accident and that the Respondent “...deliberately drove his forklift into the other forklift because he was in a hurry.”

At first instance, Commissioner Bissett found there was no valid reason for termination because “although the collision was caused by his recklessness and carelessness, he had not deliberately hit the other forklift.” (A copy of the first instance decision can be found here).

At [94] Commissioner Bissett said:

....Where an incident with health and safety implications occurs it may well provide a valid reason for dismissal but just because there are health and safety implications does not, in and of itself, provide a valid reason for the dismissal. The surrounding circumstances must be assessed. In this case Mr Nguyen felt pressured to make up time he had lost. He was concerned that he might be given a warning and he was frustrated at the delays.

On appeal, it was found that the Commissioner was in error. At [13]-[15] the full bench said:

....we think that the Commissioner fell into error in that her conclusion that there was no valid reason to terminate the Applicant’s employment was fundamentally inconsistent with her acknowledgement of the recognised dangers associated with forklifts and this incident in particular. The recognition of those dangers, together with the finding that the collision was caused by the recklessness and carelessness of the Applicant, necessitated a finding that there was a valid reason for dismissal. The issue of whether the Applicant was improperly accused of deliberately colliding with the other forklift is a matter to be considered in the context whether the termination of his employment was fair. In this respect we think the Commissioner confused her assessment of whether there was a valid reason with the overall assessment as to fairness.

[14] The characterisation of the Applicant’s conduct in causing the collision as being reckless and careless, rather than deliberate, does not in our view derogate from the seriousness of the conduct or the possible health and safety implications. 10 The assessment of whether there is a valid reason for termination of employment will commonly involve consideration of the context in which the behaviour occurred and the gravity of the conduct itself. These considerations may also be relevant to the determination of whether the termination of employment was harsh, unjust or unreasonable.

[15] We have concluded that the Commissioner erred in finding that there was not a valid reason for the Applicant’s dismissal and in determining that, on that basis, the termination was unjust.

Notwithstanding the above, the full bench still found the termination was harsh, unjust or unreasonable because inadequate account was taken of the Applicant’s employment history, and the Respondent’s conclusion about the deliberate nature of the incident was founded on flawed inferences.

Bailey v Interface Aust Pty Ltd T/A Interface Flor [2011] FWA 5130 (copy available here)

The applicant worked at a carpet warehouse. He climbed into a compacting machine, and jumped up and down in front of a group which he knew included visitors to the plant who were undertaking OH&S training. He stated that he was on the OH&S committee and laughed and giggled. He was consequently summarily dismissed.

The applicant gave evidence that he had never been told he should not climb into the compactor and that the practice was common amongst other employees, including his predecessor in the position, a Mr Dowd. Notwithstanding this, Commissioner Cargill found there was a valid reason for termination and noted:

[116] In my view the applicant’s actions were inherently unsafe. First, in climbing into the compactor and secondly, by jumping up and down whilst waving his arms about and not hanging on. In this regard it should be noted that, even had I found that the applicant had not been jumping but merely moving his legs up and down, I would still consider this to be obviously unsafe. The applicant could have fallen onto the concrete floor or hit himself on the compactor itself. In addition, even though the machine was not actually compacting at the time, it was connected to the electricity source with consequent possible risks. In my opinion the applicant’s conduct was such as to cause a serious and imminent risk to his safety.

....

[118] I accept that the applicant had climbed into the compactor on a number of previous occasions and that at least some other employees had also done so. I also accept that the applicant was told he could do this by Mr Dowd. Further, I am satisfied that the applicant was not directly told by management that he should not climb into the compactor. Clearly there is no written instruction to this effect in the operating procedures or on the compactor itself. Although it would have been extremely helpful if such instructions or signs had been in place, it seems however that it is a matter of common sense not to climb into machinery in such circumstances. In my view the applicant should not have required training on this.

Nicholls v Woolworths Limited T/A Woolworths Limited [2011] FWA 4827 (copy available here)

The applicant was a butcher in the meat department of a Woolworths supermarket. On 16 July 2010 he had received a ‘first and final’ warning for cutting particular meat product on the bandsaw without using the machine’s sliding guard and clamp. He was terminated for an incident on 1 March 2011 when he was cutting meat on the bandsaw without using the required sliding guard and clamp which led to him injuring his.

Deputy President Ives found there was a valid reason for the termination: “the Applicant’s misconduct on 1 March 2011 in breaching an important safety procedure of the Respondent, in the context of the Applicant having received the warning for a similar breach approximately eight months prior.” At [56] the Deputy President held “The safety breach of 1 March 2011 was serious. It caused actual injury. It is not difficult to imagine that injury, but for good fortune, being far worse.”

Nassis v Calstores P/L [2011] FWA 2031 (copy available here)

The Respondent owned and operated a large number of Caltex stores and had in place centralised policies. The Applicant was terminated for breaching the ‘Lock Door Policy and the Smoking Policy’.

The Respondent submitted that the Applicant had been given a series of informal and verbal warnings – some of which were accepted by Commissioner Harrison, some of which were rejected. However, the Commissioner stressed that the Applicant was trained and fully aware of the relevant policies.

The Commissioner stated:

[39] I accept the Respondent’s submission that given the high risks associated with the business and the size and scope of the operations, the Respondent had an absolute duty of care to ensure its policies were centralised and mandatory. The authorised exception at the F3 Wyong location was clearly communicated and no other individual variations could be tolerated.

[40] On his own admissions the Applicant breached the policies and rationalised his actions on the grounds he was adjusting to working in a new store and was trying his best.

[41] Regrettably in the context of working as a sole operator on the graveyard shift the Applicant put customer convenience first and his own safety and security second.

[42] In all of the circumstances of this matter I find the Applicant’s breaches of the Respondent’s policies a valid reason for his termination.

Whilst the Commissioner found there was a valid reason for termination, it was held that the Applicant was not afforded the benefits of procedural fairness and consequently the dismissal was harsh, unjust and unreasonable.

Rawat v Westbus Region 1 Pty Ltd [2011] FWA 4411 (copy available here)

The Applicant was employed as a bus driver until he was terminated for serious misconduct following a “Runaway Bus Incident” on 11 November 2010. After investigating the accident, the Respondent concluded it had been caused by the Applicant failing to properly apply the park brake when leaving the bus on the street. This led to the bus rolling backwards over a pedestrian crossing and into the front fence of a home on the opposite side of the street.

After reviewing CCTV footage, Commissioner Harrison concluded the Applicant did not engage the park brake when he parked the bus. The Commissioner was “satisfied on all of the evidence and material that the conduct of Mr Rawat was a serious breach of Westbus safety policies and procedures. In failing to follow the correct procedures Mr Rawat placed others at serious risk of injury and harm. I find there was a valid reason for the termination.”

Contact: Allan Walsh

The dangers of Facebook

Fri, 16 Sep 2011 05:29:00 GMT

In the latest in a number decisions dealing with Facebook, Fair Work Australia has found an employee was lawfully dismissed for making offensive posts.

In O’Keefe v Williams Muir’s Pty Limited T/A troy Williams The Good Guys [2011] FWA 5311 (copy available here) Mr O’Keefe made an application to Fair Work Australia alleging he was unfairly dismissed. His dismissal was in response to comments he had made on his Facebook page which the Respondent alleged constituted serious misconduct.

Evidently, for a period of time leading up to the comments being posted, the applicant had been having discussions with a fellow employee in an attempt to sort out issues with his pay. After a further complication with his pay, he made derogatory, profanity laced, insulting comments about his employer, and what was taken to be an alleged threat against the fellow employee with whom he had previously been having discussions.

The Respondent alleged there was an “intimate link between what the applicant published on his Facebook page and his work”, and that what was posted “was about a co-worker and was published so that some of his co-workers could see what he had written”. Further, the Respondent alleged the comments constituted a threat against a co-worker.

The Applicant gave evidence that his page was set to the highest maximum privacy setting, and there was no mention on his page of his employer. Under cross-examination he stated there were probably 11 co-workers who arguably would have seen the comments.

Deputy President Swan, in considering the impact of the comments stated:

[43] The fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before Ms Taylor was advised of what had occurred. The respondent has rightfully submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.

[44] I have accepted that the applicant’s conduct was repudiatory conduct which amounted to serious misconduct.

Deputy President Swan went on to say:

[51] Prima facie, threatening another work employee is a serious issue and one which would not be tolerated in any workplace. The manner in which the threat was made and the words used provided sufficient reason for the respondent’s dismissal of the applicant on the grounds of serious misconduct.

After further analysis of the procedure around the dismissal, the Deputy President found that in all the circumstances, the dismissal was not harsh, unjust or unreasonable.

Other Cases

Below are some other decisions which have considered Facebook comments.

Mayberry v Kijani Investments Pty Ltd ATF The Dawe Investments Trust Subway Wallsend T/A Subway [2011] FWA 3496 (copy available here)

The Respondent dismissed the Applicant and argued it was, at least partly, in reliance of a photograph of the Applicant that had been posted to Facebook by another person.

Dianna Smith T/A Escape Hair Design v Fitzgerald [2011] FWAFB 1422 (copy available here)

This was an unfair dismissal application after the employee had been dismissed for, amongst other things, comments posted on her Facebook page.

Dekort v Johns River Tavern Pty Limited T/A Blacksmiths Inn Tavern [2010] FWA 3389 (copy available here)

This decision concerned dismissal after an employer found pictures of an employee at a New Year’s Eve party after the employee had missed work due to illness.

Applicant v Respondent [2010] FWA 1062 (copy available here)

This decision was a consideration of whether an application had been lodged out of time. The Respondent was argued that a Facebook posting by the Respondent constituted notice of termination. This was accepted by Deputy President McCarthy.

Lukazsewski v Capones Pizzeria Kyneton [2009] AIRC 280 (copy available here)

The Applicant was terminated after making offensive comments on his Facebook page which did not identify the Respondent. The Respondent sought to have the application dismissed n the grounds that it is frivolous, vexatious or lacking in substance. Commissioner Whelan, in rejecting the application said, amongst other things “If the reason for the termination was a Facebook entry which does not reveal to whom it was directed, and has no specific reference to his employment then it also raises the issue of whether the termination was for a valid reason.”

Contact: Allan Walsh

Fair Work approves 90 minute shifts for students

Wed, 21 Sep 2011 04:27:00 GMT

A Fair Work Australia full bench has approved and amendment to the General Retail Industry Award 2010 (the Award) to allow full time secondary students to be employed for a 90 minute shift on a week day.

Decision at First Instance

In National Retail Association Limited [2011] FWA 3777, (a copy of which can be found here) Vice President Watson agreed to vary the Award by amending clause 13.4 which relates to minimum hours to be worked by casuals. The draft determination published on 20 June 2011 proposed the following variation:

A. Clause 13.4 is varied by the addition of the following words at the end of the clause:

“provided that the minimum engagement period for an employee will be one hour and thirty minutes if all of the following circumstances apply:
a) the employee is a full time secondary school student; and
b) the employee is engaged to work between the hours of 3.00 pm and 6.30 pm on a day which they are required to attend school; and
c) the employee agrees to work, and a parent or guardian of the employee agrees to allow the employee to work, a shorter period than 3 hours; and
d) employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer or the unavailability of the employee.

B. This variation takes effect from 1 July 2011.

The Vice President called for submissions regarding this draft determination. Prior to that process being finalised, the Shop, Distributive and Allied Employees Association appealed the decision and the submission process was stayed.

The Appeal

On 14 September 2011, in Shop, Distributive and Allied Employees Association [2011] FWAFB 6251 (copy available here) handed down its decision.

Some minor criticisms were made of the decision at first instance by the full bench, (for example, it was stated at [23] that “The evidence may fairly be described as thin.” And at [26] “A ‘no evidence’ ground is not made out if there is some evidence on which the impugned finding could be made. It matters not that another member may not have been persuaded by such evidence.”) Regardless of these comments, the Full Bench dismissed the appeal and discharged the submission process stay.

Relevant Principles

As recognised by the full bench, because of the discretionary nature of the decision at first instance, for the appellant to succeed it was necessary to demonstrate an error within the principles in House v The King (1936) 55 CLR 499 at 504-5 (a copy of which is available here) As Dixon, Evatt and McTiernan JJ stated in that decision:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whittaker v. The King. [endnotes omitted]

Other Comment

Of further interest is the reiteration of the full bench of a point made at first instance by Vice President Watson. Under item 6 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, in 2012 Fair Work Australia must undertake a review of all modern awards (this is in addition to the annual wage reviews and 4 yearly reviews required under the Fair Work Act 2009). The review will provide an opportunity to review the operation of the revised clause.

Contact: Justin Zeeman

When is someone an employee?

Fri, 16 Sep 2011 05:03:00 GMT

When making a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 (Tas), the first hurdle which must be cleared is to establish that the applicant is an employee. A recent decision of the Supreme Court of Tasmania, has reiterated the test for assessing whether someone is working under a “contract of service”.

Tasmanian Contracting Services Pty Ltd v Young [2011] TASSC 49 (copy available here) upheld appeal against a finding of Chief Commissioner Carey of the Workers Rehabilitation and Compensation Tribunal.

Tasmanian Contracting Services (TCS) had contracts with various individuals whereby the individuals agreed to perform work at locations directed. TCS also had contracts with ‘clients’ (various different organisations) to supply labour. These contracts were based on the system put in place by Odco Contracting Systems Australia Pty Ltd – a well known contractor system.

The contracts between TCS and the individuals attempted to explicitly set out that the individuals were not employees. At [10], his honour Evans J set out the terms of the contract between TCS and the Respondent. One such term is an explicit statement that “I acknowledge and agree that there is no relationship of employer/employee with [TCS] and that TCS does not guarantee me any work. I am self-employed…”

Notwithstanding that the contract specifically states it is not an employee/employer relationship, this is not determinative of the issues. At [7], his honour stated “It is well established that the test for establishing whether a contract of service exists involves many factors.” He then adopted and extracted (in detail) a passage from the decision of Crawford J (as he then was), agreed with by Blow J in Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354 at pars[31] – [34] (a copy of which can be accessed here)

His Honour succinctly summarised the relevant test at [43] as follows:

The answer to the ultimate question of whether the respondent was working under a contract of service is to be assessed by looking at the totality of the relationship, taking into account all relevant factors.

"This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another." Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 Mummery J at 944, Green v Victorian Workcover Authority [1997] 1 VR 364, Tadgell JA at 375, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (unreported, Court of Appeal, Victoria, 24 October 1997) at 9 and Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2005] VSC 136 Harper J par[10].

After applying this approach to the case at hand, his honour allowed the appeal and found that the Respondent was not an employee of TCS.

Contact: Justin Zeeman

Long Service Leave conflict

Fri, 16 Sep 2011 04:57:00 GMT

If a State law is inconsistent with an instrument made under a Federal Act then, under the Constitution, the State law will be invalid to the extent of the inconsistency. This was recently considered in Jemena Asset Management (3) Pty Ltd v Coinvest Limited [2011] HCA 33 (a copy of which can be found here).

The decision considered the Construction Industry Long Service Leave Act 1997 (Vic) (the Act) and its relationship to certain federal instruments (the Federal Instruments) made under the Workplace Relations Act 1996 (Cth).

The Act provided for a scheme of portable long service leave benefits for workers in continuous service within the construction industry. The Federal Instruments dealt with the entitlements of employers and employees in respect of the grant of, and payment for, long service leave arising in the employment relationship between the employee and the employer.

The full bench of the High Court concluded that there was no inconsistency between the Act and the Federal Instruments. At paragraph [60] it said:

The results of applying accepted tests of direct and indirect inconsistency in this appeal turn on the same consideration, namely that the State law providing for portable long service leave benefits for workers in the construction industry does not conflict with the federal instruments providing for the grant of, and payment for, long service leave arising in the employment relationship because, as demonstrated, the federal instruments are not incompatible with the State Act which operates in a manner which is complementary to the operation of the federal instruments. A consideration of the two different aspects of inconsistency relied upon by the appellants yields the same result, namely, that there is no real conflict between the State law and the Commonwealth law embodied in the federal instruments.

Contact: Justin Zeeman

Increased Focus on Adverse Action

Wed, 14 Sep 2011 23:58:00 GMT

There has recently been an increased focus on the adverse action provisions of the Fair Work Act 2009 (FWA) with two important cases recently being determined: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 (a copy of which can be found here); and Barnett v Territory Insurance Office [2011] FCA 968 (a copy of which can be found here).

Khiani v Australian Bureau of Statistics

This was an appeal from Khiani v Australian Bureau of Statistics [2010] FCA 1059 (a copy of which can be found here). The Respondent dismissed the Applicant for what it determined were performance issues. The Applicant alleged the dismissal was adverse action because, inter alia, she was on leave at the time the dismissal took place.

At first instance, the application was dismissed. It was found that the Applicant’s leave was nothing to do with the dismissal.

The appeal was also dismissed on the same ground: that the Applicant’s leave was nothing to do with the dismissal.

The decision confirmed that once adverse action has been shown to have occurred, the onus of proof is on the Respondent to disprove that it was taken for a reason prohibited by the FWA. It also confirmed the crucial issue in adverse action cases “is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.”

Barnett v Territory Insurance Office

This decision considered one discrete question of law: whether a written contract of employment is a ‘workplace instrument’ for the purposes of subsection 341(1)(a) of the FWA.

The definition of a ‘workplace instrument’ in section 12 of the FWA refers to an instrument recognised by a workplace law. The applicant argued this includes a contract of employment because the FWA recognises some employment relationships are governed by the terms of the contract (for example, award/agreement free employees).

His honour, Mansfield J, dismissed the application by finding, at paragraph 31, a requirement that “…an instrument must be given legal significance by reason of a particular law.” Further, at paragraph 32, his honour said:

The definition of “workplace law” refers to enactments of a particular character. The specified enactments may give particular legal significance to an instrument or to a role adopted under an instrument. It is the status of the instrument or of the activity under an instrument to which attention is drawn by the particular “workplace law”. The mere fact of the existence of a contract of employment does not enliven the relevant concept of recognition contained within the definition of “workplace instrument”. If it were simply the existence of a contract of employment on which the particular enactment operated, the expression of “made under or recognised by” would have been unnecessary. It would have been easy to have indicated that s 340(1)(a) includes a right under a contract of employment. It is also more consistent with the grouping of “workplace law”, “workplace instrument” and “order made by an industrial body” in s 341(1)(a) that the reference to recognition by a workplace law in the definition “workplace instrument” should refer to an instrument that is given legal effect or legal life by a provision of an enactment. Those three sources of the existence of a “workplace right” may be taken to have a common type of origin, or genus, in either an enactment or some formal process provided for by an enactment. That, too, is consistent with the genus in the “workplace law” definition, as (d) of that definition is confined to enactments as distinct from private contracts. That interpretation also avoids the potentially idiosyncratic outcome that a written contract of employment might contain a term which would give rise to a workplace right (if the argument for the appellant were accepted), whereas an oral contract of employment providing for the same term would not because it could not be an instrument.

Whilst this decision clarifies that a contract of employment cannot be relied upon to make an application under subsection 341(1)(a), and probably subsection 341(1)(b), it does not seem the interpretation would prevent an application under section 341(1)(c)(ii) in reliance on a contractual ability to law a complaint, as that subsection makes no reference to a ‘workplace instrument’.

The three subsections are as follows:

(1) A person has a workplace right if the person:(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or(c) is able to make a complaint or inquiry:(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or(ii) if the person is an employee—in relation to his or her employment.

Contact: Justin Zeeman

Redundancy Consultation

Wed, 31 Aug 2011 06:30:00 GMT

A recent decision of Fair Work Australia has reiterated the obligation of employers making redundancies to consult with the employees impacted.

Iryna Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215 (copy here), involved an application for unfair dismissal. As a preliminary point, Commissioner Ryan had to consider section 389 of the Fair Work Act 2009 which is as follows:

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.If the provisions are met, Fair Work Australia has no jurisdiction to hear the matter.

Contrary to the submissions of the Respondent, Commissioner Ryan held that there was a modern award “that applied to the employment” – thereby invoking the sub-section (389)(1)(b) obligation.The relevant award (the Clerks – Private Sector Award 2010) contained the standard consultation clause:

8. Consultation regarding major workplace change

8.1 Employer to notify

(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.(b) Significant effects include termination of employment, major changes in composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

8.2 Employer to discuss change

(a) The employer must discuss with the employees affected and their representative, if any, the introduction of the changes referred to in clause 8.1, effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

Contrary to the requirements in this clause, the employment of the applicant was terminated with no consultation with the employee and was effective immediately from the date of notification.Given this lack of consultation, the respondent was found to have not met the requirements of section 381(1)(b) of the Fair Work Act 2009 and, consequently, Commissioner Ryan found there was no genuine redundancy. (For good measure, Commissioner Ryan also continued the position if there was no relevant Award, for different reasons, the Commissioner found that there still would not have been a genuine redundancy).

This decision emphasises the need to consult with employees (and their representatives) whenever the employer plans major changes that will have a significant effect. The consultation cannot just be token, it must be genuine and must give consideration to issues or alternatives raised by the employees.A failure to comply with the provisions could potentially leave an employer open to an unfair dismissal application.

Contact: Justin Zeeman

Discrimination in the Provision of Footpaths by Municipal Councils

Wed, 31 Aug 2011 06:21:00 GMT

Introduction

The Full Court of the Supreme Court of Tasmania has recently rejected an argument that the Judicial Review Act 2000 applies to the decisions of the Anti-Discrimination Tribunal (‘the Tribunal’).

In Kentish Council v Woods [2011] TASSC 3 (17 August 2011) the Full Court unanimously dismissed the Appeal and determined that the Judicial Review Act did not apply to the Tribunal as the Tribunal was exercising judicial not administrative power,

The practical consequence of the Full Court decision is that the Tribunal’s decision of Taylor v Kentish Council [2009] TASSC ADT 05 remains undisturbed. The findings of the Tribunal give an additional level of responsibility to municipal councils in the undertaking of their statutory obligations and allocation of their resources.

The Tribunal found that the construction of and responsibility for footpaths is a provision of a service within the meaning of the Anti-Discrimination Act 1998 (‘the Act’), and that in circumstances their construction and maintenance may amount to indirect discrimination as defined in the Act.

Background

Mrs Taylor had a permanent physical disability, which resulted in a partial loss of function of her limbs.

Mrs Taylor and her family moved to the Tasmanian town of Sheffield where Mrs Taylor found that she had problems negotiating the footpaths to access the shops in the township. Mrs Taylor was not able to gain access to most of the shops providing services and business in the township as the footpath was at a level below the floor of the shops and had step-ups which could not be negotiated with a wheelchair without assistance.

The evidence was that all these step-ups occurred in the property boundaries of the existing shops and not within the footpath area.

The Act only applies in relation to discriminatory conduct in the areas of activities prescribed in section 22 of the Act. The Tribunal had to consider whether or not the construction, and maintenance, of the footpath was a provision of services within the meaning of the Act by the Council. Following detailed consideration the Tribunal decided it was.

Whilst there was an acceptance that the differing levels between the footpath and the shop entrances was an historical feature of Sheffield, and existed well before the commencement of the Act, the Tribunal found that the footpath had been under the Council’s legal control as long as the Council has existed but the Council had the capacity to remove the offending differing heights by undertaking and upgrading works to the footpath.

The Tribunal further found that it was unreasonable for the Council not to put in place an upgrade of the main street which addressed the footpath levels in respect to access to shops to avoid indirect discrimination of the nature experienced by Mrs Taylor.

The Tribunal made these findings notwithstanding it found that the Council had always been a relatively small Council with a modest budget and considerable demands on its resources.

The Tribunal also found there was indirect discrimination experienced by Mrs Taylor by convening Council meetings on the second storey of a building without adequate access, although such a finding is perhaps less remarkable than the finding with respect to the footpaths.

As a result of the findings the Tribunal ordered the Council to pay to Mrs Taylor the sum of $10,000.00 as compensation.

Discussion

The Tribunal’s decision increases pressure on municipal councils in their use of scarce resources. The decision ensures that there is an additional factor that must be considered when allocating resources for Council services.

With increasing public awareness and the increasing advocacy of these issues Councils should not ignore this issue.

There is, for example, a current yet unresolved matter before the Tribunal where an Applicant has brought proceedings against a Council in respect to its plans to install speed cushions on a roadway. The allegation is that this is indirect discrimination by the use of these traffic calming measures which inhibit access to people with disabilities.

Clearly the Act is impacting on Councils in the performance of their duties and its application cannot be overlooked.

Contact: Phillip Zeeman

Legal Obligations for Sporting Teams

Wed, 31 Aug 2011 06:32:00 GMT

On 24 August 2011, the Formula One team Lotus Renault GP announced that Brazilian Bruno Senna (the nephew of the late Formula One legend, Ayrton Senna) would race in the Belgian Grand Prix at Spa-Francorchamps over the weekend of 26 – 28 August 2011. In a press release on 25 August 2011 the team confirmed Senna would also race in the Italian Grand Prix a fortnight later and that the team intends to give Senna the opportunity to race for them for the rest of the season (a copy of the press release can be found here).

The problem the team has is that Senna was not filling an empty car: he was taking the place of the German driver Nick Heidfeld. Heidfeld has a contract with the team and is, unsurprisingly, not content with this arrangement. He has retaliated by applying to the High Court in London to stop the team from running Senna for the rest of the season. It is expected that a hearing will take place on September 19 which, if Heidfeld is successful, will enable him to drive in the Singapore Grand Prix on the following weekend.

Whatever the final resolution of this matter involves, the situation highlights the importance of sporting teams and organisations knowing their obligations and rights under employment law. If the situation occurred in Australia, the matters the team would need to consider would include:

The nature of the employing entity (whether it is a corporation, partnership, individual);
The location of the employment (Tasmania, Victoria, Western Australia etcetera);
The size of the employing entity (does it, including any associated entities, have fewer than 15 employees);
What notice (if any) the employer would need to give to the driver;
The length of time the driver had been employed by the team;
The driver’s salary;
Whether the employment would be covered by a modern award;
If the employment is covered by a modern award, whether there are any relevant consultation or other provisions within the award;
The terms of the employment contract; and
Whether there were any performance issues and, if so, whether the driver given a reasonable opportunity to rectify these issues.

A failure to be aware of its obligations could lead to a team being liable for breach of contract, breach of a modern award, and/or breach of a provision of the Fair Work Act 2009. Depending on the nature of the breach, the result could, amongst other things, lead to an order for damages, imposition of penalties, or an order for reinstatement.

Contact: Allan Walsh

Long Service Leave

Wed, 31 Aug 2011 06:06:00 GMT

Following the announcement of the Tasmanian State Government that it intends to amend the Long Service Leave Act 1976 (Tas) to allow private sector workers to access long service leave earlier than they are currently entitled to do (see separate article here), comes a further significant announcement concerning long service leave.

On 10 August 2011, the Workplace Relations Ministers’ Council (WRMC) issued a communiqué which, amongst other things, confirmed that the WRMC has requested the High Levels Officials Group to:

“...examine the development of a Long Service Leave National Employment Standard (LSL NES), with Ministers requesting a progress report in around 6 months and a final position on the LSL NES in around 12 months’ time.”

Currently, the provisions for long service leave within the Fair Work Act 2009 are contained in sections 113 and 113A and are very basic: they do not create any entitlements, rather, they just provide that certain existing entitlements continue (the sections can be found here: 113 and 113A). This is because long service leave remains a State based obligation.

We will keep you updated in respect to how the proposed LSL NES develops.

Contact: Allan Walsh

New Practice Directions issued by the Resource Management and Planning Appeals Tribunal

Mon, 15 Aug 2011 06:21:00 GMT

On 8 August 2011 a series of new Practice Directions commenced operation in the Tasmanian Resource Management and Planning Appeals Tribunal (“the Tribunal”).

The Practice Directions regulate how legal proceedings before the Tribunal are to be conducted, and in particular set out the requirements in respect to the following matters:

Lodgement of documents, notices and grounds of appeal;
Procedures;
Preliminary Conferences;
Alternative Dispute Resolution;
Agreement between the Parties and Judgments;
Hearing Process;
Material and Evidence;
Information and Plans Requirements;
Statements of Facts and Contentions;
Representatives and Witnesses;
Expert Witnesses;
Summonses;
Civil Enforcement Proceedings;
Costs;
Costs Assessment Hearings; and
Tribunal Etiquette.

Whilst there are 17 Practice Directions in total, the Tribunal specifically highlighted three Practice Directions in its circular dated 9 August 2011, namely Practice Directions 8, 9 and 12.

Practice Direction 8 regulates how evidence is to be presented to the Tribunal. It must be in writing in the form of a statement of evidence, such statement to be individually prepared by a witness. Unless an exception applies, a witness is to attend at a hearing in order that he or she be questioned about his or her statement of evidence. The Practice Direction requires that all evidence that a party seeks to rely upon be filed with the Tribunal, and served on each other party, at least 14 days before a hearing. Parties then have 7 days to prepare statements of evidence in response.

Practice Direction 9 regulates the presentation of material, in particular plans and drawings, in proceedings before the Tribunal. Compliance is critical as a failure to comply will result in material being returned or disregarded.

Practice Direction 12 makes important changes in relation to expert witnesses. The Practice Direction introduces an Expert Witness Code of Conduct which applies to any expert witness engaged or appointed:

To provide an expert’s statement of evidence for use as evidence in proceedings or proposed proceedings; or
To give opinion evidence in proceedings or proposed proceedings.

Importantly, as soon as practicable after a party engages or appoints an expert witness, the party is required to provide the expert witness with a copy of the Expert Witness Code of Conduct. Further, unlike the general rule that a witness is to attend at hearing in order that he or she be questioned, if a party wishes to cross-examine an expert witness, notice is to be given at least three days before the relevant hearing.

It is a requirement that parties to a matter before the Tribunal comply with the new Practice Directions, unless a party has sought the Tribunal’s permission to vary them, and such permission has been granted. It follows therefore that a party’s failure to comply with these Practice Directions can have serious adverse consequences on its ability to effectively participate in a proceeding. For that reason it is important that all parties who appear before the Tribunal familiarise themselves with the practice direction requirements.

Contact: Phillip Zeeman

Proposed earlier access to Long Service Leave for Tasmanian private sector workers

Mon, 15 Aug 2011 04:17:00 GMT

On 4 August 2011 the Tasmanian Government announced that it intends to amend the Long Service Leave Act 1976 (Tas) (LSL Act) to allow private sector employees access to long service leave after 10 years of continuous employment with their employer.

Currently, subsection 8(2) of the LSL Act entitles an employee who has completed 15 years continuous employment with his or her employer to 13 weeks’ long service leave. For each subsequent 10 year period of continuous employment, the employee is entitled to a further 8 2/3 weeks’ long service leave.

Whilst under the Government’s proposal the rate of accrual will remain unchanged, an employee will be entitled to 8 2/3 weeks’ long service leave after 10 years of continuous employment with his or her employer.

The Government has indicated that it expects to introduce a bill with its proposed amendments by the end of 2011. The Minister for Workplace Relations, David O’Byrne said that the Government “will talk to stakeholders about a commencement date, as well as appropriate transitional arrangements for private sector workers with accrued amounts of Long Service Leave”.

Contact: Justin Zeeman

Can a decision not yet acted upon be discriminatory?

Fri, 16 Sep 2011 04:51:00 GMT

In Forster v Hobart City Council and Anor [2011] TASADT 02 (a copy of which can be accessed here)

An interesting point was raised regarding what can – potentially - constitute discrimination.

The Complainant was aggrieved by a decision made by the Respondent on 14 April 2008. That decision was to install speed cushions on Waterworks Road. After making the decision, the Respondent referred the matter to the Transport Commission for their consideration.

The reported decision concerned an application by the Complainant to have the Transport Commission joined as a party to the proceedings.

The point of interest is that the speed cushions have not been installed: the Complainant’s allegation is that the Respondent’s decision on 14 April 2008 was indirectly discriminatory on the basis of disability.

At paragraph [32], Tribunal Member Otlowski determined:

One argument raised by Mr Turner on behalf of the Transport Commission/ DIER concerned the fact that the matter under consideration involved a decision made by the Transport Commission/ DIER to permit something to occur but which had not yet occurred and therefore no discriminatory breach of the Act could possibly be established. This issue had however been addressed by the submission on behalf of the Respondent Hobart City Council with which counsel for the Complainant had agreed. The Tribunal notes the decision of Waters v Rizkalla [1991] 1VR 12 relied on in support of the proposition that it is possible to discriminate by making a decision to impose a requirement or a condition which satisfies the Act, even though the decision is yet to be implemented.

The effect of this decision is that parties aggrieved by decisions which could result in allegedly discriminatory actions do not necessarily have to wait until the discriminatory action: once the decision has been made, that is enough for a complaint to be made.

Contact: Phillip Zeeman

Distributing information to clients and wearing campaign clothing: is this industrial action?

Wed, 27 Jul 2011 06:46:00 GMT

Introduction

A Full Bench of Fair Work Australia has dismissed an appeal against a finding that distributing information to clients and the media about the reason for industrial action, and the wearing of campaign clothing, constitutes industrial action.

Mornington Peninsula Shire Council appealed a decision of Vice President Lawler in which he made an order for a protected action ballot which included the following question:

Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement between the employees covered by the proposed agreement and Mornington Peninsula Shire Council:

...

Authorise industrial action by Registered Nurses in the form of distributing information to clients, and the media about the reason for industrial action, and the wearing of campaign clothing?

There were five grounds of appeal. Four of these grounds related to the contention that the action described in the question was not “industrial action”, as defined in section 19 of the Fair Work Act (FW Act), specifically sub-sections (a) and (b) of section 19(1).

19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

The final ground of appeal alleged that the form of the question was not permissible.

The Majority Decision

In dealing with the first four grounds of appeal a majority of the Full Bench found that the actions specified within the question were capable, depending upon the circumstances, of constituting “industrial action” within the meaning of s.19 of the Act.

In their joint decision Senior Deputy President Watson and Commissioner Gooley found that:

In respect of the distribution of information to clients, and the media about the reason for industrial action, one such circumstance would arise if employees ceased or interrupted their work in order to communicate the reasons for industrial action to clients or the media. In that circumstance, the action would clearly involve the performance of work by an employee in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the performance of the work (s.19(1)(a)) and a ban, limitation or restriction on the performance of work by an employee (s.19(1)(b)).

We find that the wearing of campaign clothing is capable of constituting a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee (s.19(1)(b)).

In our view, the term “the performance of work” within s.19(1)(b) of the Act is not restricted to how the tasks associated with a particular job are performed. It involves for example when work is performed, where work is performed, how work is performed and the conditions under which work is performed.

Clearly ss.19(1)(a) and (b) of the Act are directed at different conduct. In s.19(1)(a) the conduct must cause a particular result, namely a restriction or limitation on, or a delay in the performance of work.

In s.19(1)(b) of the Act there need be no result from the conduct; there must simply be a ban limitation or restriction on the performance of work or on the acceptance of or offering for work by an employee.

…

Accordingly, we find that the wearing of campaign clothing whilst at work could constitute a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee (s.19(1)(b)).

In respect to the final ground of appeal there were two parts to the appellant’s contention. Firstly, it was contended that the question was ambiguous in that it sought “authorisation for two (if not three) distinct forms of action”. The second part of the appellant’s contention was that the question lacked “the particularity required to enable it to take remedial or response action, being expressed as a global statement”.

Senior Deputy President Watson and Commissioner Gooley dismissed both contentions, the first on the basis that it was permissible to split that question into two parts, the second on the basis that the question was “expressed adequately to enable employees to respond to it, seeking authorisation of industrial action in the form indicated”.

The Minority Decision

Senior Deputy President Kaufman delivered a minority decision finding that he would allow the appeal and quash the order of Vice President Lawler.

After considering the statutory provisions in respect to protected action ballot orders and protected industrial action, Senior Deputy President Kaufman found that the conduct described in the question did not fall within either limb of the definition of industrial action in sections 19(a) or (b).

Conclusion

The majority decision answers the question of whether communication with clients and the media, and the wearing of “campaign clothing”, can constitute “industrial action”. Not only is this relevant to enterprise agreements, and ballot orders sought in relation to them but also has the effect that adverse action cannot be taken against a person who engages in such conduct.

Contact: Justin Zeeman

Sport and Recreation Tasmania Grants Program

Tue, 16 Aug 2011 06:48:00 GMT

Sport and Recreation Tasmania provides funding to increase opportunities for participation in sport and active recreation in Tasmania, and to assist the ongoing development of Tasmania’s sport and active recreation sector.

In 2011-12 funding is available through four grant programs:

• Minor Grants Program;
• Major Grants Program;
• State Grants Program;
• National/International Sport Championships Program.

Clubs, not-for-profit organisations and local government entities that provide sport and recreation opportunities to the Tasmanian community are invited to apply.

For more information (including the application dates, eligibility criteria and application forms) see the Sport and Recreation Tasmania grants program website here.

Contact: Allan Walsh

Full Bench upholds JJ Richards decision

Wed, 27 Jul 2011 00:00:00 GMT

Introduction

The Full Bench of Fair Work Australia yesterday held that if parliament had intended that a protected action ballot order should not be available unless bargaining had commenced it would have employed language to that effect.

In dismissing appeals of J.J. Richards & Sons Pty Ltd (JJ Richards) and the Australian Mines and Metals Association Inc. (AMMA) against a decision made by Commissioner Harrison, the Full Bench considered the construction of s.443(1)(b) of the Fair Work Act 2009 (FW Act), which reads:

443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

Both JJ Richards and AMMA argued that a protected action ballot order cannot be made unless bargaining has commenced. This contention was made on the bases that:

a. If bargaining had not commenced it was not possible to find that the applicant (in this instance the Transport Workers’ Union of Australia) was genuinely trying to reach an agreement with the employer; and

b. If the employer is unwilling to bargain the applicant has exhausted the steps available to it under the FW Act Act to force the employer to do so.

In so far as exhausting the steps available under the FW Act, these steps include seeking a majority support determination under s.237 and, if necessary, good faith bargaining orders pursuant to s.230.

Construction of s.443(1)(b)

In construing the meaning of .443(1)(b) the Full Bench disagreed with the appellants’ contention that it was “crystal clear that it was never intended that protected industrial action could be taken if bargaining had not commenced”.

The Full Bench found that the words in s.443(1)(b) direct attention to the conduct of the applicant, there being no reference to the conduct of the employer. The Full Bench found that the conduct of the employer is only relevant to the extent that it might assist in a determination of whether the applicant is genuinely trying to reach an agreement with the employer. Further it held that:

The question posed by the ordinary and natural meaning of the words is whether the applicant’s own conduct indicates that it is attempting to reach an agreement and that it is genuine. It is not apparent from the immediate context that the words should be given a meaning other than their ordinary one. The appellants and other parties, however, submitted that there are other provisions in the Act which support a contrary interpretation.

When the other provisions to which our attention has been drawn are examined it appears that they do not deal directly with the commencement of bargaining. While the idea of bargaining commencing may be a useful shorthand expression, it is an inaccurate paraphrase of the statutory language. The Act does not use the expression “bargaining has commenced” or any similar expression.

Section 413(3) provides that the relevant bargaining representative must be genuinely trying to reach agreement for the industrial action to be protected, but the section does not require that the employer has agreed to bargain or has initiated bargaining.

The Full Bench also found that basis for implying that if bargaining has not commenced an order under section 413(3) cannot be made unless an applicant has successfully sought a majority support determination and, possibly, bargaining orders.

One of the appellants’ arguments not determined by the Full Bench was in respect to the ability of an employer to take “employer response action”. The Full Bench said:

Employer response action is dealt with in s.411. Importantly s.411(a) provides that employer response action must meet the common requirements of protected action in s.413. Pursuant to s.413(3) employer response action is only available to an employer which is genuinely trying to reach agreement. It was argued that the construction adopted by the Commissioner would disadvantage an employer which did not wish to bargain but wished to take industrial action in response to protected industrial action. This is a submission of substance. On the one hand it may be thought that it would be unfair, and unintended, that the Act should permit protected industrial action in circumstances in which employer response action could not be taken. On the other hand such a result may be consistent with the emphasis which the legislation places on bargaining, reflected in the objects of the Act and the good faith bargaining requirements. Both interpretations are open and the legislative scheme does not make one more compelling than the other.

Summary

The decision of the Full Bench confirms that there is nothing to prevent a bargaining representative organising protected industrial action to persuade an employer to agree to bargain. Further, a union that is genuinely trying to reach an agreement for its members, but cannot get the employer to agree to bargain, is permitted to organise protected action irrespective of whether it has the support of the majority of employees.

Contact: Justin Zeeman

Federal age and sex discrimination laws amended

Wed, 27 Jul 2011 02:09:00 GMT

On 24 May 2011 the Lower House of Federal Parliament passed the Sex and Age Discrimination Legislation Amendment Bill 2010 which makes a number of significant amendments to both the Sex Discrimination Act 1984 and Age Discrimination Act 2004.

The amendments to the Sex Discrimination Act:

a. Prohibits discrimination against a woman on the ground of breastfeeding if, by reason of:

(a) breastfeeding; or

(b) a characteristic that appertains generally to women who are breastfeeding; or

(c) a characteristic that is generally imputed to women who are breastfeeding;

For the purposes of the Act, a person discriminates against a woman on the ground of the breastfeeding if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are breastfeeding.

b. Extends prohibition of sexual harassment of staff and students of educational institutions, and makes it unlawful for a person to sexually harass another person in the course of seeking, or receiving, goods, services or facilities from that other person.

c. Broadens the prohibition on discrimination on the ground of family responsibilities to provide equal protection, to both men and women in all areas of their work.

The amendments will also establish the stand-alone position of Age Discrimination Commissioner within the Australian Human Rights Commission. In his second reading speech, the Attorney –General, Mr McClelland, said that “Australia’s ageing population has highlighted the need for a dedicated commissioner to engage with stakeholders, including industry and community representatives, to address discrimination in the workplace and in the community, to promote respect and fairness, and to tackle the attitudes and stereotypes that can contribute to age discrimination.”

Contact: Justin Zeeman

Equal Remuneration Decision

Tue, 16 Aug 2011 06:48:00 GMT

On 16 May 2011 the Full Bench of Fair Work Australia (FWA) handed down an important decision in the equal remuneration case, which concerns the Social, Community, Home Care and Disability Services Industry Award 2010 (SACS).

FWA determined there is unequal remuneration for men and women workers in the SACS industry compared to state and local government workers and that an important (but not the sole) factor in this gap is due to gender.

Interested parties have been invited to provide further submissions as to the amount of impact gender has on this unequal remuneration. These submissions are due in June and July, with further hearings scheduled for August 2011.

Once these steps have been completed, it is expected that FWA will increase the pay levels in the industry by identifying amounts (either as percentages or dollar figures) to be added to the rates in the SACS. FWA will also determine whether the increases should be phased in over time.

The decision also rejected an application to amend the SACS position classifications.
A full copy of the decision is available from the Fair Work Australia website here.

Contact: Justin Zeeman

Construction Contracts - Contracting out of the proportionate liability regime

Wed, 27 Jul 2011 03:42:00 GMT

Introduction

The Full Court of the Supreme Court of Tasmania has recently rejected an argument that express terms are required in a contract to “contract out” of the operation of the proportionate liability regime contained in the Civil Liability Act 2002 (Tas).

In Aquagenics Pty Ltd v. Break O’Day Council [2010] TASFC 3 (10 May 2010) the Full Court unanimously dismissed the appeal and determined that whilst the contract did not specifically refer to the Civil Liability Act a consideration of the provisions of the contract entered into between the parties led to the conclusions that the parties had made provision for their respective rights, obligations and liabilities and had contracted out of the proportionate liability regime contained in the Civil Liability Act.

Background

Aquagenics had entered into a contract with the Break O’Day Council for the detailed design, construction, testing, commission and process approval of a Waste Water Treatment Plant for the Council at St Helens, Tasmania.

A dispute arose between Aquagenics and the Council. The contract provided that the Council as principal could give the contractor (Aquagenics) a notice to show cause if the contractor committed a substantial breach of the contract and the principal considered that damages were not an adequate remedy. Notice was given and in the principal's view the contractor failed to show reasonable cause and the principal took over the works.

The contract contained an arbitration clause, however despite the existence of such clause the contractor commenced proceedings in the Supreme Court for damages and an order for the return of security.

The Council sought to have the Court proceedings stayed pursuant the Commercial Arbitration Act (Tas). The stay application was resisted by the contractor who submitted to Court that arbitration was not appropriate as the arbitration would give rise to arguments between the parties which were likely to be novel and difficult questions concerning the proportionate liability provisions of the Civil Liability Act.

In response the Council asserted to the Court that no such novel or difficult questions would arise given that the proportionate liability provisions of the Civil Liability Act had no application as the parties had contracted out of its application.

The Full Court in reaching it conclusion considered the provisions of the contract between the Council and Aquagenics. The clauses demonstrated to the Full Court that the parties had contracted out of the proportionate liability regime notwithstanding clear words were not used. At paragraph 109 Tennant J says

Further, the parties in this matter, as I have said before, agree that any dispute between them would go to arbitration. They did so in the knowledge that they were entering into significant and complex legal relationship, but that relationship would involve other parties carrying out some of the work need to fulfill the contract, and that disputes may arise. They did so against the backdrop which already included the Act, the Pt9A.

Conclusion

Whilst the Full Court did not require specific clauses contracting out of the proportionate liability regime contained in the Civil Liability Act specific clauses in the agreements certainly would have avoided the need for these lengthy and costly legal proceedings.

In any construction contract a principal should consider including a clause that the proportionate liability regime not apply. In doing so a principal will retain the right to look to a contractor to recover the full amount of their claim notwithstanding they have the knowledge that subcontractors could well be used to undertake some of the services of the contractor. This would reduce costs of arbitration for a principal by avoiding arguments in relation to concurrent wrongdoers. The opposite could be said for contractors although whether or not the proportionate liability provisions would apply to arbitration even if there is no ‘contracting out’ is not settled.

Contact: Phillip Zeeman

Easements, Interpretation, Operation, Registration and Lost Modern Grants

Tue, 26 Jul 2011 07:02:00 GMT

Introduction

The Full Court of the Supreme Court of Tasmania in the recent decision of Chick v. Dockray [2011] TASFC 1 (6 April 2011) discusses the often controversial area of easements, indefeasibility of title, exceptions to indefeasibility, misdescription of easements, easements by implication, prescription etc and creation of easements under the doctrine of Lost Modern Grant.

Background

Mrs Dockray purchased 5 parcels of land in 2007. At the time of the completion of the purchase Mr Chick blocked part of his land, the servient tenement, by the erection of a fence at the point which prevented Mrs Dockray from accessing the property through an easement which included a diversion to that easement, the diversion not falling within the marked easement.

The first question the Full Court was required to answer was whether there was an entitlement under the registered easement to use the truncated portion of the easement to access the dominant tenement via the diversion. The Court found that there was.

Importantly in determining this question the Full Court noted:

• When construing the terms of an easement that is registered under the Torrens Title, rules of evidence which assist in the construction of contracts between parties, of the nature explained by the authorities such as Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] 149CLR 37 at 350 – 352, do not apply. The reason for that is to be found in the principle of indefeasibility of title (at 19);

• The only extrinsic evidence that may be used to assist construction are terms or expressions indentified in the property register, such as survey terms or abbreviations which appear on the plan (at 20);

• It is the language of the easement that is paramount when construing it (at 22).

In this matter the easement provided that the registered proprietor of the dominant tenement, Mrs Dockray, had full and free right and liberty to go, pass and re-pass, at all times and for all purposes into, out of and from the dominant tenement through, over and along the strip of land contained in the easement. The Full Court held Mrs Dockray’s use of that the strip of land used to go to and from the dominant tenement fell squarely within the terms of the easement not withstanding that Mrs Dockray was also using a diversion to do so. The language of the easement did not prohibit the use of truncated portion of the easement.

Doctrine of Lost Modern Grant

The second question the Full Court was required to answer was whether there was entitlement to use the land contained within the registered easement to access other lands owned by Mrs Dockray, not part of the dominant tenement. The Supreme Court at first instance had held such an entitled existed pursuant to the doctrine of Lost Modern Grant.

Section 138I was inserted into the Land Titles Act and came into force on the 12 April 2001. Section 138I provides that “the rule of law known as the doctrine of Lost Modern Grant, the acquisition of easements is abolished”.

On face value this would appear to defeat Mrs Dockray’s claim.

In the Full Court Mr Chick relied upon two arguments in an effort to overturn the Supreme Court’s decision.

The first argument was based on the indefeasibility of title. Section 40(2) of the Land Titles Act provides subject to subsection 3 and 4 that the title of the Registered Proprietor is indefeasible.

Mrs Dockray relied on the exception contained in section 40(3)(e)(i) that easements arising under implication defeated indefeasibility.

Mr Chick responded by asserting it was not an easement arising under implication.

Mrs Dockray relied on the legal fiction that the easement arose as a result of the loss of Lost Modern Grant.

The Full Court rejected Mr Chick’s arguments and in part relying on the statements of Toohey J in Parramore v Duggan (1995) 183 CLR 633 at 650 that the intention of section of 40(3)(e) is to give protection of those easements legal or equitable which are, or were incapable of, registration under the Land Titles Act or the registration of Deeds Act.

The Court was of the view that a right of way supported by a Lost Modern Grant was an easement by implication and capable of defeating the claim for indefeasibility.

The second argument put forward by Mr Chick was that a Court has no jurisdiction to declare that Mrs Dockray was entitled to a right of way pursuant to a Lost Modern Grant. The basis of this submission was the only mechanism available for the registration of an easement was to apply to the Recorder of Titles for a vesting order under section 138J of the Land Titles Act.

Section 138J of the Land Titles Act sets out a procedure for the vesting of easements which are not yet registered on the title and requires applications to be made to the Recorder of Titles by the dominant tenement and sets out procedurse for representations.

Mr Chick submitted that the provisions of section 138I of the Land Titles Act which abolished the doctrine of Lost Modern Grant prevented the Court from making the declaration sought and the appropriate procedure to make an application to the Recorder. The Full Court rejected this submission.

The Full Court held that an easement acquired under the doctrine of Lost Modern Grant could still be registered so long as the applicant could demonstrate such a right existed in the applicant immediately prior to the amendments (including the insertion of section 138I) which came into effect on the 12 April 2001. An easement acquired under the Lost Modern Grant is an easement in gross and only requires the period of time be established prior to the commence of section 138I.

Conclusion

Easements remain contentious property rights and when asserting rights and obligations it is important to consider the actual words of the easements. Intentions of the original parties to the easement unless expressed in the words of the easement are not relevant to interpretation but rather proper drafting of an easement is important.

Finally easements created by Lost Modern Grant prior to the introduction of section 138I can still be registered on titles and are not defeated by indefeasibility of title. Given that such easements require amendments to registered property rights future possible disputes may arise.

Contact: Phillip Zeeman

Modern awards relevant to sporting organisations

Wed, 27 Jul 2011 03:45:00 GMT

Introduction

What may come as a surprise to many is that sporting organisations of nearly every type are covered by modern awards.

Relevant Awards

The four main modern awards which cover sporting organisations are outlined below.

The ‘Registered and Licensed Clubs Award 2010’ covers employees (with some exceptions) of a club “which is registered and licensed under the provisions of relevant State or Commonwealth Statutes (Liquor and/or Gaming Acts, Associations’ Incorporation Acts or Corporations Acts) and which is established and operates on a not-for-profit basis for the benefit of members and the community”. The types of employees covered are: bar attendants; greenkeepers; stewards; and various other roles.

The ‘Sporting Organisations Award 2010’ (with some exceptions) covers national, State and Territory sporting organisations with respect to their employees that fit the classifications in the Award. The classifications cover coaches of various levels and clerical and administrative staff.

The ‘Racing Clubs Events Award 2010’ covers (with some exceptions) employers engaged in staging of events at horse and greyhound racing venues. It applies to a large range of employees including: attendants; timekeepers; farriers; ground announcers; betting supervisors; judges and others.

The ‘Racing Industry Ground Maintenance Award 2010’ covers employers in the racing industry in relation to their employees who are engaged in maintenance of racing venues. It applies to trades people, trackwork/pool supervisors, management, and maintenance and horticultural employees.

Effect

It is imperative that sporting organisations understand whether any awards apply to them and their employees. If they do, the organisation must ensure it complies with the minimum pay rates, work hours, and working conditions set out in the relevant awards. A failure to do so, even an inadvertent failure, could lead to the organisation being prosecuted for breaching the Fair Work Act 2009 which could lead to large fines.

Contact: Allan Walsh

Racing Regulation Amendment (Race Fields) Act 2011

Tue, 26 Jul 2011 05:46:00 GMT

Introduction

On 28 March 2011 the Racing Regulation Amendment (Race Fields) Act 2011 (the “Act”) received Royal Assent. The Act is very important to the future of racing in Tasmania.

Government Intention

The intention of the Government is that the imposed fees will raise approximately $4.9 million per annum which will be fed directly back to Tas Racing.

Effect

The Act amends the Racing Regulation Act 2004 and the Racing (Race Field) Regulations 2009. The amendments allow the Tasmanian racing industry to charge ‘wagering operators’ a fee to publish Tasmanian ‘race field information’. ‘Wagering operators’ include bookmakers, betting exchanges, operators of totalizator, or any other prescribed persons. ‘Race field information’ is identification information about numbers or names of horses or greyhounds entered/competing in, or scratched/withdrawn from, a Tasmanian race meeting.

Operation

The way the regulations operate is to make it an offence for a wagering operator to publish Tasmanian race field information unless they are authorised to do so: a) under the regulations; or b) by “a race field information publication approval”.

Publication Approval

To obtain a race field information publication approval, a wagering operator must:
- apply to Tas Racing;
- hold a licence or authority to conduct wagering (can be Tasmanian, interstate or from another country);
- pay the applicable fee (currently 10% of gross revenue);
- meet the prescribed integrity conditions; and
- provide the required information when applying for the approval.

Commission

The race field fees are also payable by on-course bookmakers, with the pay off being that the on-course bookmakers no longer have to pay commission on their racing turnover.

Litigation

The Act is an attempt to allow race field fees to be charged in such a manner that it will be fair for all wagering operators. This is a particularly sensitive issue at the moment because on 11 March 2011, Sportsber Pty Ltd and Betfair Pty Ltd were both granted special leave to appeal to the High Court in relation to cases regarding race field fees in New South Wales.

The Tasmanian Government has received advice from the Solicitor-General in an attempt to ensure the Act does not lead to such litigation.

Contact: Allan Walsh

Proposed sale of TOTE

Tue, 16 Aug 2011 06:50:00 GMT

Introduction

On 16 November 2010, the Tasmanian Treasurer announced an intention to introduce legislation in 2011 to repeal the TOTE Tasmania (Sale) Act 2009 (“the Tote Sale Act”).

In early April 2011 the Acting Treasurer told State Parliament that, due to budgetary issues, the Government no longer has this intention. This article outlines why the repeal of the Tote Sale Act would prevent the sale of TOTE Tasmania.

Overview

There are two different Government business types in Tasmania: Government Business Enterprises (“GBE”) and State-Owned Companies (“SoC”).

Government Business Enterprises Act 1995

The Government Business Enterprises Act 1995 (“GBE Act”) provides a framework for the Government to establish entities to perform certain functions. The GBE Act works in conjunction with the “Portfolio Acts” under which GBEs are established.

The GBE Act does not, of itself, permit the sale of GBEs. However, the Government Business Enterprises (Sale) Act 2003 (“GBE Sale Act”) does give the Government the power to sell the business of certain “prescribed GBEs” (as defined in section 3).

However, both the GBE Act and the GBE Sale Act, only apply to prescribed entities. TOTE Tasmania is not prescribed under the GBE Act or the GBE Sale Act. As such, TOTE Tasmania is not a GBE, so the GBE Act and the GBE Sale Act do not apply to it.

Specific legislation

TOTE Tasmania was established as a SoC under the TOTE Tasmania Act 2000 (“Tote Act”) and assumed some of the responsibilities of Racing Tasmania (a GBE).

Under section 9 of the Tote Act, the members are the relevant Minister and the Treasurer, in trust for the Crown. Sections 17 and 19 incorporate some parts of the GBE Act (mostly in relation to income tax and guarantee fees), but nothing relevant to the sale of the business.

As with the GBE Act, there is nothing within the Tote Act which gives the Government the power to sell TOTE Tasmania or any aspect of its business.

To sell the business, the Government needed to enact legislation giving it power to do so. This came with the Tote Sale Act, which was given royal assent on 15 May 2009. It explicitly provided the Government with the power to sell TOTE Tasmania (or a subsidiary), and/or shares in TOTE Tasmania (or a subsidiary).

Summary

As can be seen, the power to sell TOTE Tasmania is derived from the Tote Sale Act. As such, if it is repealed, there is no longer any legislative power to sell.

Contact: Allan Walsh

Fast track case orders now available in Supreme Court of Tasmania

Tue, 26 Jul 2011 05:46:00 GMT

On 8 April 2011 amendments to the Supreme Court Rules 2000 will commence allowing the fast track case management of civil proceedings in the Supreme Court of Tasmania.

These amendments allow greater judicial case management in respect to the conduct of civil litigation, the purpose of which is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.

Litigants will now be able to defeat the delay and inefficiency of another party by using fast track case management. The Circular issued by the Supreme Court can be found here.

Contact: Phillip Zeeman

Trademark issues in sport

Sun, 10 Jul 2011 23:59:00 GMT

Introduction

February 2011 saw two stories emerge in the world of Formula 1 racing that highlight the role of trademarks in sport.

Ford v Ferrari

On 28 January 2011 Ferrari launched its Formula 1 car for the 2011 season. At the launch, the team widely referred to the car as the “F150”. Less than a fortnight later, the Ford Motor Company issued proceedings in a US Federal Court accusing Ferrari, inter alia, of trademark infringement. Ford were trying to protect their trademark of “F-150”, which is the name of its famous pick-up truck. This was followed, on 10 February 2011 by Ferrari publishing on their website ‘clarification’ that the name of the car is “F150th Italia”, and also denying that Ford had any basis for its action.

Trademark of ‘F1’

On 17 February 2011, the General Court of the European Union in Luxembourg handed down its decision on a trademark case involving use of the abbreviation “F1”. Essentially, the decision concluded that the abbreviation “F1” is descriptive and not distinctive. Consequently the abbreviation, by itself, is not protected by trademark laws.

Sporting problems

A problem with trademarks and protecting them in the sporting context is illustrated by the ‘F1’ example above: if a word or abbreviation merely describes a sport it will not be protected. In much the same way, FIFA could not bring an action for trademark infringement against someone for using the words ‘football’ or ‘soccer’.

Other option

However, in today’s society of professional sport, governing entities need to take steps to restrict unauthorised exploitation of the sports they oversee in order to protect the commercial value. A common way to do this is to trademark a tournament/championship title. Examples include:
- “2010 FIFA World Cup South Africa”;
- “FIA Formula One World Championship”;
- “ICC Cricket World Cup 2011”; and
- “UEFA Champions League”.

By giving tournaments names, and building up brands associated with the tournaments (rather than the sport as a whole) the governing body protects its sponsors and revenue streams. It also provides clearer foundations for governing bodies to bring actions for breaches of their intellectual property.

Summary

Trademarks are important revenue streams for governing bodies, sporting teams, and players themselves so it is vitally important that every possible step is taken to prevent the trademarks being exploited by unauthorised persons.

Contact: Allan Walsh

Legal Updates

Federal Court Confirms School Student Minimum Shifts

Annual Wage Review

Work Health and Safety Update

Tasmanian Sports Law Conference

Details

About ANZSLA

Can an employer assert that LinkedIn connections constitute confidential information?

Conclusion

Termination for Falsified Medical Certificate

Evidence

Decision

Equal Pay Decision

Worker representation and participation guide published by Safe Work Australia

Related Links:

Full Bench considers obligation of redeployment for purposes of genuine redundancy

Scope of managerial prerogative

WH&S: Code of Practice Update

Harmonised WH&S Laws: Tasmanian Delay

Related Links:

WH&S Model Law Update: South Australian Delay

Related Links:

Harmonised WH&S Model Laws Update: New Duty for Tasmanian Officers

Introduction

Increased Risk for Company Directors

Existing Obligation

New Obligation

Meaning of Officer

Due Diligence

Practical Steps

Penalties

Commencement Date

Conclusion

Related Links

Heritage Representations by Email

Overview

Background

Discussion

Circumstances in which provision of accommodation is payment

Circumstances

Prohibition

Decision

FIFA Laws

Normal Practice

Reasoning

The Importance of Following High Court Precedents

Conclusion

Tasmanian Long Service Leave Update

The importance of properly identifying the actual applicant in planning permit applications

Introduction

Background

Discussion

Conclusion

Planning Representations by Email

Introduction

Background

Discussion

Successful ANZSLA Conference

Model Work Health and Safety Bill introduced into Tasmanian Parliament

FWA upholds employer's right to conduct drug and alcohol testing

Sports Betting and Match Fixing Developments

Introduction

The Coalition of Major Professional and Participation Sports (COMPPS)

Sport and Recreation Ministers’ Council (SRMC) Communiqué

Victorian Review

Standing Committee of Attorneys-General (SCAG)

NSW Law Reform Commission

Australian and New Zealand Sports Law Association (ANZSLA) Annual Conference

Termination of Employment for Safety Breaches

The dangers of Facebook

Fair Work approves 90 minute shifts for students

When is someone an employee?

Long Service Leave conflict

Increased Focus on Adverse Action

Redundancy Consultation

Discrimination in the Provision of Footpaths by Municipal Councils

Introduction

Background

Discussion

Legal Obligations for Sporting Teams