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/ Diploma in Law /LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
21 INDUSTRIAL LAW
SUMMER SESSION 2017-18
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
March 2018 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
/SUMMER 2017-18
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.
MARCH 2018 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 in the following locations:
6 November to 11 December 2017 – New Law School Annexe Seminar Room 342
8 January to 19 February 2018 - New Law School Seminar Room 022
nOTE: The study break is from Saturday 16 December 2017 – Sunday 7 January 2018.
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 24 November 2017, 5.00pm – 9.00pm;
Abercrombie Seminar Room 1080 / Friday 2 February 2018, 5.00pm – 9.00pm;
New Law School Annexe Seminar Room 342
Sunday 26 November 2017, 4.00pm – 8.00pm;
Abercrombie Seminar Room 1100 / Sunday 4 February 2018, 4.00pm – 8.00pm;
New Law School Annexe Seminar Room 342
texts and materials
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, 6th ed. Federation Press, 2016
· Sappideen, O’Grady and Riley, Macken’s Law of Employment, 8th ed. Thomson Reuters, 2016
· Pittard and Naughton, Australian Labour and Employment Law, LexisNexis, 2015
· Neil and Chin, The Modern Contract of Employment, Lawbook Co, 2012
· Irving, The Contract of Employment, LexisNexis, 2012
· Fair Work Legislation 2017-18, Thomson Reuters, 2017
· LNAA: Annotated Fair Work Act and Related Legislation, LexisNexis 2016
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
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PRESCRIBED TOPICS AND COURSE OUTLINE10
1. Contract of employment
Creighton and Stewart, ch 7-9, 16 and 20-21
Sappideen, O’Grady and Riley, ch 1-11
Pittard and Naughton, ch 4-7
(1) Role of the Contract of Employment
(a) Modern Awards/Agreements and arbitration and National Employment Standards
Fair Work Act 2009 (Cth), ss 11, 13-14 and 43-45
Industrial Relations Act 1996 (NSW), ss 5-6 and 10
(b) Other 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
(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
Damevski v Guidice (2003) 133 FCR 438
ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346
Tattsbet Ltd v Morrow (2015) 233 FCR 46
(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
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403
McKeith v Royal Bank of Scotland Group PLC [2016] NSWCA 36
Westpac Banking Corporation v Wittenberg [2016] FCAFC 33
(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) 22 NSWLR 317
Del Casale v Artedomus (Australia) Pty Ltd (2007) 165 IR 148
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/Good faith
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
Commonwealth Bank v Barker (2014) 253 CLR 169
Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30
(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
Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505
(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
Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221
(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
Automatic Fire Sprinklers v Watson (1946) 72 CLR 435
Visscher v Guidice (2009) 239 CLR 361
(ab) Injunction/Specific Performance
Turner v Australian Coal and Shale Employees Federation (1984) 55 ALR 635
Gregory v Philip Morris Ltd (1988) 80 ALR 455
Downe v Sydney West Area Health Service (No 2) (2008) 174 IR 385
Quinn v Overland (2010) 199 IR 40
(ac) Damages
Addis v Gramophone Co [1909] AC 488
Yetton v Eastwoods Froy Ltd [1967] 1 WLR 104
Bliss v South East Thames Regional Health Authority [1987] ICR 700
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Johnson v Unisys Ltd [2003] 1 AC 518