by David Kidd | 19 Mar 2015 | Uncategorized
[2009] FWA 779 Vic Lee C v CLS P/L (R argued that FWA had no jurisdiction as worker’s {W} annual earnings exceeded the high income threshold of $108,300 by $833 – s332, which defines earnings, considered – $26,100 of W’s remuneration was in the form of a living away from home allowance {LAFHA} – Acton SDP concluded that the LAFHA “was in the nature of compensation to [W] for the additional accommodation expenses he reasonably incurred because he was required to live in Australia away from his usual place of residence in the United Kingdom in order to perform the duties of his employment with CLS … [and that] more than $833 in LAFHA was not earnings within the meaning of s332 … or for the purposes of s382(b)(iii) … Nor was it other benefits worked out in accordance with the regulations, as described in s382(b)(iii) … In considering the scope of ‘earnings’ within the meaning of s332 … or for the purposes of s382(b)(iii) … it is relevant that s332(2)(b) … provides that reimbursements do not constitute such earnings” @18-20. [2010] FWA 1952 NSW Chang v Ntscorp Ltd (A held to have exceeded the high income threshold as FWA satisfied that “the provision of a motor vehicle for private use, and the payment of a home internet subscription were benefits enjoyed by the [A] in return for her work”@25 – approach to calculating the motor vehicle component of her income and the approach to non-monetary benefits in general considered and Fewings applied) [2010] FWA 2907 WA Atkinson v Midway Community Care Inc (applicant exceeded high income threshold when...
by David Kidd | 27 Jul 2014 | Uncategorized
Pregnancy – Potential problems if gets pregnant See Kaur v Victorian WorkCover Authority 26/11/14 [2014] VSCA 300 where “contention that the judge, having found that the appellant suffered from a discogenic injury in her lower back with resultant permanent pain and restriction, ought to have taken judicial notice of the fact that ‘a woman with disc bulges in the lower back would suffer enhanced pain during pregnancy’ must be rejected” @42. “It is not possible to say that it is inevitable that a woman who becomes pregnant and who has a particular form of disc bulge will thereby have their lower back pain exacerbated. The particular effect of pregnancy upon a woman’s body is variable and, given that variability, if it is to be taken into account, it must be the subject of medical evidence as to what is likely to occur in the circumstances of the particular woman” @44. “The contention that the trial judge denied the appellant natural justice in not warning her that she would not make a finding that pregnancy pain be taken into account because it was not supported by medical evidence cannot be sustained” @49. Night-shift workers See Fraser v Burswood Resort (Management) Ltd 15/7/14 [2014] WASCA 130 re scope of duty owed to night shift worker who lost control of her car and was injured when driving home at 4am. NSW CLA s5 … Ice Skating In Moor v Liverpool Catholic Club Ltd 25/6/13 [2013] NSWDC 93 Levy SC DCJ found that the D breached its duty of care to the P who fell and injured his ankle while descending stairs wearing...
by David Kidd | 26 Jul 2014 | Uncategorized
Transfer of business [2014] FWC 8356 SA Worgan v Bedford Group (“In terms of s.389(1)(a) Bedford’s decision to cease job placement activities and transfer that function to Maxima represents a change in its operational requirements which explains why Mr Worgan could no longer be offered employment as a Bedford employee” @27 – “whilst Mr Worgan identified a number of different reasons for declining the Maxima offer of ongoing employment, his primary reasons for doing so were that he preferred to work with people with disabilities and that he sought a redundancy payment” @24 – the roles were essentially the same – “the arrangement implemented with respect to Mr Worgan, constituted a transfer of business such that as Mr Worgan rejected that employment offer, Bedford was not obligated to make redundancy payments to him” @26) FWA Cth s186(3) – Requirement that group of employees … is fairly chosen [2014] FWCFB 8429 CEPU & AMWU v Main People Pty Ltd (R only had three casual employees at time Agreement made – “FWC must be satisfied that group covered by the agreement was fairly chosen. In determining that matter in a situation where not all employees of the employer are covered by the agreement, FWC must take into account whether the group is geographically, operationally or organisationally distinct. It is in the nature of the scheme established by the FW Act that (a majority of) the employees employed at the time an enterprise agreement is made can agree to terms and conditions of employment that will then bind future employees employed under the terms of that agreement. Nor is there anything in...
by David Kidd | 21 Jul 2014 | Uncategorized
Today, 21/11/14, the new web-site of Kidd's Law Publications was launched in Word Press. Valuable new Product Previews have been freely provided on the web-site for Fair Work Law & Annotated Act, Kidd & Darge's Traffic Law (Civil & Criminal), Kidd's Damages Australia – Assessing Personal Injury Damages in Australia, and Kidd's Traffic Law (Criminal). Stay tuned to this blog as summaries of the latest case law pertaining to Fair Work Australia Law, motor and traffic Law and assessment of damages law will be provided...
by David Kidd | 16 Jul 2014 | Uncategorized
FWA Cth s382(b)(iii) – High income threshold [2014] FWC 8956 NSW Post v QSuper Ltd (“The applicant’s total remuneration package was $145,600. The total contribution to his superannuation account was 12.5%. The respondent submitted that only the compulsory 9.5% charge was excluded from Mr Post’s total remuneration package for the purposes of assessing whether he exceeded the high income threshold” @8 – “a higher voluntary contribution is a contribution from income which is properly considered income to be taken into account in assessing whether or not the high income threshold is exceeded”...
by David Kidd | 9 Jul 2014 | Uncategorized
In Proudlove v Burridge 19/11/14 [2014] WADC 156 per Keen DCJ, P was left severely disabled after the vehicle in which he was a passenger hit a horse and left the road. The accident occurred at night on a country road where the speed limit was 110kmh. A motorist, having seen two horses on the road, stopped her car with the headlights facing oncoming traffic, put her hazard lights on and attempted to shoo the horses away. When this proved unsuccessful she tried to wave a warning to oncoming vehicles. One driver saw her and swerved but lost control of her vehicle. P alleged that D, the driver of the vehicle she was in, was negligent for failing to see the horses, the lady on the road or the lights of her vehicle. P’s claim was dismissed. D was driving within the speed limit and otherwise carefully. Whilst it was found that he was negligent for failing to see the hazards, P ultimately failed on causation. Even if D observed the hazards, braked and swerved it had not been shown that the accident could have been avoided or lessened to any appreciable extent (p569). The collision appeared to be inevitable or unavoidable. Section 5D Civil Liability Act...
