Macpherson v Coal and Allied Mining Services
[2009] FMCA 704
•15 July 2009
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
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