1
/ Diploma in Law /LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
21 INDUSTRIAL LAW
WINTER SESSION 2016
This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.
Course Description and Objectives / 1Lecturers / 1
Assessment / 1-2
September 2016 Examination / 2
Lecture Program / 2
Weekend Schools 1 and 2 / 3
Texts and Materials / 3
Prescribed Topics and Course Outline / 4-10
Compulsory Assignment / 11
Assignment Question / 11
3
LAW EXTENSION COMMITTEE
/WINTER 2016
21 INDUSTRIAL LAW
Course description and objectives
Industrial law, or the law of employment, is the body of law that regulates the relationship between employers and employees, employers and trade unions, and trade unions and employees.
The Industrial Law course is a general introduction to industrial law, having the primary objective of introducing students to the minimum entitlements of employees and the system of collective bargaining which operates in Australia, and the common law contract of employment. The course will also introduce students to the law (both common law and statute) relating to industrial disputes and industrial action.
These objectives will be attained by an analysis of decisions of the relevant courts and tribunals, and statutory provisions. Students will also be expected to consult the academic literature referred to in the course outline.
lecturers
Mr A T Britt, BSc, LLB (Hons) (Syd)
Anthony Britt is a barrister practising in industrial law before both Federal and State Industrial Tribunals. He holds the degrees of Bachelor of Science and Bachelor of Laws (Honours) from the University of Sydney, and held the Lionel Murphy Scholarship in 1988 and 1989.
Mr M Gibian, BA (Hons), LLB (Hons) (Syd)
Mark Gibian is a barrister practising in Sydney primarily in employment and industrial law. He holds the degrees of Bachelor of Arts (Honours) and Bachelor of Laws (Honours), both from the University of Sydney.
ASSESSMENTTo be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the NSW Admission Board Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be reviewed prior to a final mark in the subject being awarded. Except in the case of demonstrable error, assignment marks will not otherwise be reviewed prior to the examination.
SEPTEMBER 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics: The workplace relations system; contract of employment; and strikes and industrial action.
Candidates are expected to have achieved a thorough knowledge and understanding of the prescribed topics, and a capacity to demonstrate mastery of these by reference to the prescribed text, the prescribed statutes, and the cases and statutory provisions referred to in the Law Extension Committee's course outline.
The examination in Industrial Law will consist of six questions, in either problem or essay form, of which four must be answered. All enquiries regarding examinations should be directed to the Legal Profession Admission Board.
LECTURE PROGRAM
Lectures in Industrial Law will be held on Monday nights commencing at 6.00pm on 9 May 2016. Evening lectures in the first half of the semester, from Monday 9 May until Monday 6 June, will be held in New Law School Seminar Room 115 (New LSSR 115). Lecture venues for the second half of the semester have yet to be confirmed.
nOTE: The study break is from Saturday 18 June – Sunday 3 July 2016.
weekend schoolS 1 and 2
There are two weekend schools primarily for external students. Lecture students may attend but should be aware that weekend school classes aim to cover the same material provided in weekly lectures and are primarily for the assistance of external students. Please note that it may not be possible to cover the entire course at the weekend schools.
First Weekend School / Second Weekend SchoolFriday 27 May 2016, 5.00pm – 9.00pm;
New Law School Seminar Room 020 / Friday 22 July 2016, 5.00pm – 9.00pm;
New Law School Seminar Room 020
Sunday 29 May 2016, 4.00pm – 8.00pm;
New Law School Seminar Room 020 / Sunday 24 July 2016, 4.00pm – 8.00pm;
New Law School Seminar Room 020
texts and materials
For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting the promo code LECW2016 will receive a 15% discount on all text titles (except for those authored by John Carter). This discount is not limited to the prescribed or recommended texts for our courses. Students should, however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop, for example, offers a discount on texts sold to its members.
Course Materials
· Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Statutes
· Fair Work Act 2009 (Cth)
· Industrial Relations Act 1996 (NSW)
(Either Government Printers Copy, Thomson Reuters or CCH edition of above statutes.)
Reference Books
· Creighton and Stewart, Labour Law: An Introduction, 5th ed. Federation Press, 2010
· Macken, O’Grady, Sappideen and Warburton, Law of Employment, 7th ed. Thomson Reuters, 2011
· Pittard and Naughton, Australian Labour Law: Cases and Materials, 5th ed. LexisNexis, 2010
· Neil and Chin, The Modern Contract of Employment, Lawbook Co, 2012
· Irving, The Contract of Employment, LexisNexis, 2012
· Fair Work Legislation 2015, Thomson Reuters, 2015
· LNAA: Annotated Fair Work Act and Related Legislation, LexisNexis 2014
Useful websites
Once you have registered online with the LEC, you will have full access to all the facilities on the Webcampus including links to relevant cases and legislation in the Course Materials section. Other useful links include:
AustLII - Australian Legal Information Institute / http://www.austlii.edu.auFair Work Commission / http://www.fwc.gov.au
Industrial Relations Commission
of New South Wales / http://www.irc.justice.nsw.gov.au/
Commonwealth Legislation / http://www.comlaw.gov.au
New South Wales Legislation / http://www.legislation.nsw.gov.au
10
PRESCRIBED TOPICS AND COURSE OUTLINE10
1. Contract of employment
Creighton and Stewart, ch 7-9, 14 and 18-19
Macken, O’Grady, Sappideen and Warburton, ch 1-11
Pittard and Naughton, ch 3-6
(1) Role of the Contract of Employment
(a) Modern Awards/Agreements and arbitration and National Employment Standards
Fair Work Act 2009 (Cth), ss 11 and 43-44
Industrial Relations Act 1996 (NSW), ss 5-6
(b) Other state legislation
Long Service Leave Act 1955 (NSW), s 3
Workers Compensation Act 1987 (NSW), s 3
Pay-roll Tax Act 1971 (NSW), s 3
Work Health and Safety Act (NSW), s 7
Superannuation Guarantee (Administration) Act 1992 (Cth), s 16
(c) Vicarious liability of employers
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
(2) Identifying an "Employee"
Performing Right Society Ltd v Mitchell [1924] 1 KB 762
Zuijs v Wirth Bros (1955) 93 CLR 561
Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385
Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16
Building Workers Industrial Union of Australia v Odco (The Troubleshooters' Case) (1991) 29 FCR 104
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) (2011) 279 ALR 341
ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37
(3) Sources of the Content of the Contract
(a) Individual agreement: express terms; terms implied in fact and law
B P Refinery (Westernport) v Shire of Hastings) (1977) 16 ALR 363
Mann v Capital Territory Health Commission (1981) 54 FLR 23
Riverwood International Ltd v McCormick (2000) 177 ALR 193
Goldman Sachs J B Were Services Pty Ltd v Nikolich (2007) 163 FCR 62
Tibaldi Smallgoods (Australasia) Pty Ltd v Rinaldi (2008) 172 IR 86
Transport Workers Union v K & S Freighters Pty Ltd (2010) 205 IR 137
(b) Awards and agreements operating as minimum conditions
Fair Work Act 2009 (Cth), s 61
Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410
(4) Duties of the Parties
(a) The work/wages bargain
Automatic Fire Sprinklers v Watson (1946) 72 CLR 435
Csomore v Public Service Board of New South Wales (1986) 17 IR 275
(b) Other duties of the employee
(ba) Obedience to lawful orders and co-operation
Adami v Maison de Luxe (1924) 35 CLR 143
The Ottoman Bank v Chakarian [1930] AC 277
Australian Telecommunications Commission v Hart (1982) 65 FLR 41
Cresswell v Board of Inland Revenue [1984] 2 All ER 713
Johnstone v Bloomsbury Health Authority [1992] 1 QB 333
(bb) Care and skill
Insurance Contracts Act 1984 (Cth), s 66
Employees Liability Act 1991 (NSW), s 3
Lister v Romford Ice and Cold Storage Co [1957] AC 555
Printing Industry Employees Union of Australia v Jackson and O'Sullivan (1957) 1 FLR 175
(bc) Fidelity: competition and confidentiality
Restraints of Trade Act 1976 (NSW)
Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co [1894] AC 535
Herbert Morris v Saxelby [1916] AC 688
Blyth Chemicals v Bushnell (1933) 49 CLR 66
Hivac v Park Royal Scientific Instruments [1946] 1 Ch 169
Faccenda Chicken v Fowler [1987] 1 Ch 117
Wright v Gasweld Pty Ltd (1991) 39 IR 256
Del Casale v Artedomus (Australia) Pty Ltd (2007) 165 IR 148
Tullett Prebon (Australia) Pty Ltd v Purcell (2008) 175 IR 414
Commercial & Accounting Services (Camden) Pty Ltd v Cummins (2011) 207 IR 351
(c) Other duties of the employer
(ca) Provision of work
White v Australian and New Zealand Theatres (1943) 67 CLR 266
Mann v Capital Territory Health Commission (1981) 54 FLR 23
Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337
(cb) Safety of employees
Work Health and Safety Act 2011 (NSW)
Workers Compensation Act 1987 (NSW)
Wilsons and Clyde Coal Co v English [1938] AC 57
McLean v Tedman (1984) 155 CLR 306
(cc) Trust and confidence
Bliss v South East Thames Regional Health Authority [1987] ICR 700
Malik v Bank of Credit and Commerce International SA [1997] 3 All ER 1
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186
Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 176 IR 82
State of South Australia v McDonald (2009) 185 IR 45
Commonwealth Bank v Barker (2014) 253 CLR 169
(5) Termination of Employment
(a) By agreement
(aa) Fixed or contingent term
Bunge (Australia) Pty Ltd v Mallard (1982) 41 ALR 223
Ikin v Danish Club Dannebrog Inc (2001) 140 IR 101
(ab) Agreed period of notice
Fair Work Act 2009 (Cth), s 117
Termination, Change and Redundancy Case (1984) 8 IR 34; 9 IR 115
Quinn v Jack Chia (Australia) [1992] 1 VR 567
(b) Frustration
Finch v Sayers (Australia) Ltd [1976] 2 NSWLR 540
International Harvester Export Co v International Harvester Aust Ltd [1983] VR 539
Notcutt v Universal Equipment Co [1986] 1 WLR 641
(c) Without notice
(ca) Summary dismissal
Adami v Maison de Luxe (1924) 35 CLR 143
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285
Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427
Intico (Victoria) Pty Ltd v Walmsley [2004] VSCA 90
(cb) Constructive dismissal
Western Excavating (BCC) Ltd v Sharp [1978] 1 QB 761
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186
(6) Remedies for Wrongful Termination at Common Law
(a) Employee's remedies for wrongful dismissal
(aa) Right to affirm contract