McDonald’s Australia Enterprise Agreement 2009 [2010] FWA 1347. ( 23 rd April 2010)

Commissioner Donna “Big Mac” McKenna, formerly of the Industrial Relations Commission of New South Wales, now a Commissioner of Fair Work Australia, has rejected an Application filed by Mc Donald’s, for an Enterprise Agreement to cover its 80,000 employees, employed in all McDonald’s outlets in Australia. The Application under s 185 of the Fair Work Act filed by McDonald’s was supported by the union, the Shop Distributive and Allied Employees Association (SDA) which was closely involved in the making of the Agreement and supported its approval . The Commissioner handed down a 102 page judgment of 383 paragraphs, setting out many reasons why the approval of the proposed Agreement would be declined .

The length of the judgment is more telling, in that there was no contradictor in the case. The application for approval had been filed last December. The matter had been listed for hearing at various times earlier this year when the Commissioner had raised a number of preliminary concerns about the Application. In February this year, she made a Statement expressing further concerns about the proposed Agreement. The parties provided statutory declarations in addition to the material originally filed, in order to allay the concerns of the Commissioner. [...] Continue Reading…

Director General, New South Wales Department of Health v. Industrial Relations Commission of New South Wales [2010] NSWCA 47 (22 March 2010).

The New South Wales Court of Appeal has acted swiftly in the wake of the High Court decision of Kirk v. Industrial Relations Commission (NSW) [2010] HCA 1 in making orders against a decision of the Full Bench of the Industrial Relations Commission of New South Wales. Hitherto, one would have thought, the IRC decision would have been protected by the privative provisions of the Industrial Relations Act, s.179. This case involved an unfair dismissal claim squarely within the arbitral jurisdiction of the Industrial Relations Commission not the Industrial Court. It concerned a ward orderly in a public hospital who was summarily dismissed after taking a photograph of a naked two year old patient. He brought an unfair dismissal claim which at first instance was rejected. He appealed and the Full Bench allowed the appeal. The matters which were challenged before the Court of Appeal were the form of orders made by the Full Bench. Those orders were not to reinstate but to re-employ the Applicant in his former position. Further, it was ordered that he would not return to work and would resign in writing effective from the day immediately following the date of the decision. However, he was awarded his wages he would have received had be remained at work in the two year period from dismissal to the date of the Commission order. [...] Continue Reading…

Kirk & Anor ats WorkCover Authority of New South Wales [2010] HCA 1 (3 February 2010) .

In its first decision of 2010, the High Court has handed down a very important judgement concerning the conduct of occupational health and safety prosecutions in New South Wales. The High Court has rebuked both the WorkCover Authority and the Industrial Court of New South Wales not only in the way this case was dealt with, but also in the way others have been handled for many years. The Appellants before the High Court were a company and its director, Mr Kirk. The company owned a farm and as Mr Kirk had no farming experience he left the day-to-day operation to a manager. Whilst so engaged, the manager, rather than use a formed and safe road, drove an off-road vehicle down the side of a hill, it overturned and the manager was killed. The manager who had far more experience and skill than Mr Kirk had his behaviour described by Justice Heydon as being “inexplicably reckless.” [125]. The reporting of this case has gone beyond the normal legal journals and has been widely reported in the general press. [...] Continue Reading…

Bryan A. Garner is Editor-in-Chief of the current edition of Black’s Law Dictionary and the author of many books and articles on legal writing.

The author has written and lectured extensively on legal writing and has compiled many of his papers, articles and speeches on this topic within this book. Because of the nature of the compilation and its length, the book is mildly repetitive although such a minor criticism does not detract from its value. [...] Continue Reading…

A pen portrait by friend and artist Simon Fieldhouse. Visit Simon’s website to see more of his work. [...] Continue Reading…