by David Kidd | 20 Aug 2018 | Fair Work Law & Annotated Act
[2018] FWCFB 4732 4 yearly review of awards – Proposed Norfolk Island Award (application for proposed interim award refused – “s.139(1)(g)(iii) is to be construed as either ‘an exception to the otherwise general operation of s.154 or as a specific statutory provision dealing with a question not sought to be addressed in that section’” @17 – “s.154 … does not require all modern award terms and conditions to operate uniformly throughout Australia; both limbs of s.154(1) are directed to the same general objective — to prohibit differences between entitlements in States or Territories as such, that is, to eliminate ‘State-based’ differences; and s.154(1)(b) ‘prevents the possibility that terms and conditions might apply (ie as a matter of general application) in one or some but not every State or Territory, thereby discriminating (facially at least) against employees in those States or Territories which are excluded’” @18 – “With effect from 1 July 2016, the Territory of Norfolk Island became a Territory within the meaning of s.154(1)(b)” @19 – the Full Bench therefore considered “whether the proposed Interim Award includes any terms and conditions of employment that ‘are expressed to operate in one or more, but not every, State and Territory’” @19 – “a coverage term is a term and condition of employment for the purposes of s.154(1)” @23 – “all the terms and conditions of employment included in the proposed Interim Award are State based difference terms within the meaning of s.154(1)(b) … It is unnecessary for us to express a view as to whether the terms and conditions included in the proposed Interim Award are State-based differences terms within...
by David Kidd | 15 Aug 2018 | Fair Work Law & Annotated Act
A decision of the Full Bench of the Fair Work Commission was just handed down relating to two issues under the Legal Services Award 2010. In [2018] FWCFB 4709 the Full Bench rejected a proposal that 26 weeks be ‘the specified period’ over which hours of work be averaged because there was no probative evidence whether the current Award provision allowing for the averaging of ordinary hours over 28 days was insufficient and whether the 26 week period was necessary. The Law Firms had submitted that employees under the Legal Services Award work side-by-side with qualified and admitted lawyers who are not covered by the Award. Therefore, they argued, it is reasonable and desirable that employees covered by the Award should be permitted to average hours of work over a 26 week period. Regarding leave entitlements of law graduates, a new clause 39 was substituted adequately and appropriately accommodating the various study leave requirements of PLT students and supervised training as well as those undertaking a graduate diploma. It reads: Special conditions of employment—Law graduate 39.1 A law graduate is entitled to paid study leave not exceeding a total of 20 days in any 12 month period to attend a course of instruction, and prepare for and attend examinations that relate to the practical legal training required for their admission to practise as an Australian lawyer. 39.2 Paid study leave may be taken for a period or periods agreed between the employer and employee. The employer will not unreasonably refuse to agree to a request by the employee to take paid study leave in accordance with this...
by David Kidd | 12 Aug 2018 | Damages assessments - Recent cases
See Masson v State of Queensland 23/7/18 [2018] QSC 162 where P “suffered hypoxic brain damage as a result of a severe asthma attack. It is alleged she would have avoided the injury if ambulance officers who attended upon her had administered adrenaline promptly to her. Their decision not to do so is said to have been contrary to Queensland Ambulance Service … guidelines and a breach of the QAS’s duty of patient care” @1. Henry J found no breach of duty stating “The asthma guideline did not require adrenaline to be administered. It prompted consideration of the administration of adrenaline. The administration of adrenaline was considered but rejected by reason of the concerning presence of tachycardia and hypertension. The presence of those conditions would have been regarded by a responsible body of opinion in the medical profession as supporting the view that Ms Masson’s high heart rate and high blood pressure, in the context of her overall condition, provided a medically sound basis to prefer the administration of salbutamol to the administration of adrenaline at the time of initial treatment. Opting to administer salbutamol in preference to adrenaline in those circumstances was a reasonable response to the known risks” @151. It “is important to bear in mind ambulance officers are not medical practitioners who are specialists in emergency medicine” @152. If breach of duty had been established “that breach was likely a material contributing cause of Ms Masson’s injury”...
by David Kidd | 30 Jul 2018 | Uncategorized
Here are some 2018 cases involving difficulties with electronic lodgement at the Fair Work Commission. In each case, exceptional circumstances were found and an extension of time granted. [2018] FWC 1490 Qld Bosschieter v CSA Services (Jones Family Trust) (s365 application one day late – “Mrs Bosscheiter made a genuine attempt to upload the application in an eligible format, but experienced difficulty as she did not have access to a computer. … Mrs Bosscheiter had a reasonable believe (sic) it had been accepted. Upon being made aware the application was not in an eligible format … Mrs Bosscheiter was proactive in her attempt to resubmit, and had to wait for her friend to return from work to borrow their computer” @19 – extension granted) [2018] FWC 2933 Qld Chartier v Community Solutions Group (exceptional circumstances found where there was an unsuccessful attempt to lodge application the day before time limit expired – A was not able to contact the Commission until the next day as the attempt to lodge was made outside business hours) [2018] FWC 3334 NSW Wignall v White Sneakers P/L (exceptional circumstances found – “The circumstances were uncommon in that due to a technical issue with the Commission’s on-line lodgement process, Mr Wignall’s application was not received at the time of attempted lodgement, and at the time the filing fee was paid” @25) [2018] FWC 2864 Qld Bruschi v BHP Billiton Mitsui Coal P/L (application one day late due to A having problems with e-lodgement – A got a reference number after lodging, but did not realize his attempt to pay with his credit card had...
by David Kidd | 23 Jul 2018 | Annotated Fair Work Act, Fair Work Law & Annotated Act
Employee or Independent Contractor Case [2018] FWC 4038 NSW Barratt-Hassett v PERC Group P/L (initially, the A accepted work with R and invoiced R – subsequently A accepted a formal employment contract, but claimed he was also an employee in the initial period he worked – it was finely balanced, but A held to be an employee from the beginning as he was not running his own business and establishing goodwill) [2018] FWC 4285 Vic Seaver v Trade Fair @ Falls Creek (the A “was a skilled graphic designer who exercised a degree of expertise and autonomy in performing her work. She clearly did not require any direct supervision, but was simply provided with direction by email in regard to what was to be done in respect of each publication. She worked from home and did not have set hours. She was simply provided with direction by email, often close to deadline, and then was expected to do whatever was required to complete the work in accordance with those directions” @21 – A “generally earned around 80 percent of her income from her work with K C Bell Enterprises, although she also indicated that this figure might actually have been higher. However, she did have another part-time job, although this was unrelated to her work as a graphic designer. It also appears that she had some capacity to do other work, given she only worked for the Respondent for around 34 weeks each year, and the hours she worked appeared to be concentrated around publication times. KC Bell Enterprises indicated … it understood Ms Seaver did work on occasions...
by David Kidd | 25 Jul 2015 | Uncategorized
Contact kidlrs@optusnet.com.au for more. See www.kiddslaw.com See Peden v Ferguson 15/5/12 [2012] NSWSC 492 where alleged that D GP failed “to take appropriate action following a consultation on 18 September 2007 which would have led to an earlier diagnosis of sacral chordoma, a terminal cancer” @1. The only issue was whether P complained of altered sensation and feelings of electric shock in the September consultation. D’s notes, which did not record such a complaint, preferred over P’s recollections and diary notes that he made such a complaint. Claim failed. See Paul v Cooke 25/7/12 [2012] NSWSC 840 where Brereton J concluded that “the circumstance that Dr Cooke’s duty of care did not extend to responsibility for a procedure that may have been occasioned by his diagnosis (or lack thereof) is not of itself reason to deny that he is liable for damage done in the course of such a procedure; once breach of duty is established, the question is one of causation. Although the inquiry as to causation is influenced by the scope of the relevant viagra sans ordonnance duty, this is more appropriately considered under the ‘scope of liability’ element of causation, which is a different notion from ‘scope of duty’. Chappel v Hart dictates that the correct comparison in this case is between having the operation on the occasion on which it took place, and having it on an occasion in 2003. That comparison results in the conclusion that, on the probabilities, had Dr Cooke diagnosed the aneurysm in 2003, Mrs Paul would have had it treated by clipping, and the aneurysm would have been obliterated without...
