Macpherson v Coal and Allied Mining Services

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACPHERSON v COAL & ALLIED MINING SERVICES

[2009] FMCA 704

PRACTICE & PROCEDURE – Admission of evidence.

Workplace Relations Act 1996, s.226

Applicant:

ALLAN MACPHERSON

Respondent:

COAL & ALLIED MINING SERVICES

File Number:

SYG 2960 of 2008

Judgment of:

Raphael FM

Hearing date:

15 July 2009

Date of Last Submission:

15 July 2009

Delivered at:

Sydney

Delivered on:

15 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr A Slevin

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Mr A Gotting

Solicitors for the Respondent:

Freehills

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2960 of 2008

ALLAN MACPHERSON

Applicant

And

COAL & ALLIED MINING SERVICES

Respondent

REASONS FOR JUDGMENT

Mr Gotting advises that he has a number of objections to the expert's report provided by Ms Murray. The second of those objections relates to a passage on page 5 of the report which commences with the words:
"Although health issues do not appear to apply to Mr Macpherson now such issues certainly are family concerns that are associated with long hours."
The sentence continues and then there is a quote from a named but otherwise unidentified person. Mr Gotting argues that this sentence and the following extract are irrelevant to a consideration of whether or not the number of hours proposed to be worked under the roster that is in dispute in this case is unreasonable or, perhaps more accurately, that the additional hours required to be worked by the applicant are unreasonable.
With respect to the author I must say that the sentence is unhappily worded because it makes reference to family concerns although she was questioned about family relationships. It is also not at all clear whether the quotation is intended to persuade the reader of a possible danger down the track of long hours or whether it is limited to the concern felt by the wife of a person working these hours. In the absence of clarification the court might be forgiven for not giving the views much weight.
Mr Slevin says that the whole should be admitted because even if it is referring only to the concerns expressed by wives of people who are working 12 hour shifts, it is relevant as one of the many factors that should go to the court's consideration of whether the extra hours are reasonable.
There is in sub‑paragraph (4) of s.226 of the Workplace Relations Act 1996 (the “Act”) a list of factors which may be included but which are not limited. That refers to an employee's personal circumstances including family responsibilities and not directly to family concerns, but I am open to argument that family concerns should not be excluded from the list and that as this part of this report appears to address those concerns, to my mind it should be allowed to stand subject of course to cross-examination.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 July 2009

CaseChat Overview and Summary

The Federal Magistrates Court of Australia heard a case between Allan Macpherson and Coal & Allied Mining Services, concerning the admissibility of certain evidence in relation to workplace rostering arrangements. Macpherson challenged the reasonableness of the proposed roster, which required him to work extended hours, while the mining company argued that the evidence was irrelevant to the dispute. The court was required to decide whether the evidence in question, specifically a report by an expert witness, was admissible under the provisions of the Workplace Relations Act 1996.

The court examined the expert report to determine whether it addressed the family concerns associated with long working hours, a factor listed in the Act that may be considered in determining the reasonableness of the roster. The report included a passage that mentioned family concerns, although it was unclear whether these concerns related to potential future health issues or merely the present concerns of the wives of employees working extended hours. The respondent objected to this passage, arguing it was irrelevant to the dispute. However, the applicant maintained that the concerns of family members were relevant to the overall consideration of the reasonableness of the proposed roster. The court acknowledged the ambiguity in the report but concluded that the concerns of family members were relevant to the personal circumstances of the employee, which could be considered under the Act.

Raphael FM found that the passage in the expert's report, while awkwardly worded, should be admitted as it potentially addressed family concerns, a factor that could be considered under the Act. The court ruled that the passage should be admitted into evidence, subject to cross-examination, as it might inform the consideration of the reasonableness of the roster in light of the employee's personal circumstances, including family responsibilities.

The court's decision was that the passage in question should be admitted into evidence, and the report could be considered in determining whether the proposed roster was reasonable. The court ordered that the expert's report, including the contested passage, be allowed as part of the evidence in the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established