Allen v Chadwick [2015] HCA 47 – getting in a car with an intoxicated driver and failing to put on seat belt – contributory negligence

The law often does not reflect ethics, morals or societal expectations. If you did not learn this at law school, you will quickly learn this as a junior lawyer. One reason why the law often falls short is the need to attribute responsibility. Attributing responsibility can be a very black and white exercise whereas real life is often more complex. There is no better example than the various civil liability regimes in Australia. In December 2015, the High Court handed down the case of Allen v Chadwick [2015] HCA 47 (Allen v Chadwick) which concerned contributory negligence of an injured person under the Civil Liability Act 1936 (SA) (Civil Liability Act). The case involved chilling facts where a pregnant woman who had been drinking and was in a car with her heavily intoxicated partner became paraplegic after her partner drove the car into trees. The legal question before the High Court was the extent the woman could be held contributory negligent for knowingly travelling in a car with an intoxicated driver and failing to wear a seatbelt.

Facts

In March 2007 (yes, it took the case 8 years to get to the High Court, which is not unusual) Ms Chadwick (who was pregnant at the time) and Mr Allen went on a weekend getaway to the Yorke Peninsula with their 5 year old daughter. They met with Mr Allen’s school friend Mr Martlew and his two children aged 3 and 6 and booked two motel rooms attached to the Port Victoria Hotel. After the children had been put to bed, the adults moved to the Port Victoria Hotel. Mr Allen and Mr Martlew had been drinking most afternoon and continued to drink at the Port Victoria Hotel. There was some evidence that Ms Chadwick had also been drinking, though in lesser amounts. After the Port Victoria Hotel closed, they moved to the veranda area near the motel rooms. At about 1:30am, the adults decided to go for a drive to look for some cigarettes. Mr Allen and Mr Martlew were heavily intoxicated.

Ms Chadwick drove initially for about 15 minutes, with loud music playing and Mr Allen and Mr Martlew screaming directions at her. Ms Chadwick stopped the car at some point on the highway out of town as she needed to relieve herself. On returning to the car Mr Allen was in the driver’s seat. On asking Mr Allen to get out, Mr Allen screamed at Ms Chadwick to “get the fuck in the car”. Ms Chadwick got in the car, attempting and then abandoning her attempts to put on a seatbelt. Mr Allen took off, gaining speed into town, where he did a series of U-turns before driving out of the town, off the road and hitting trees. On impact, Ms Chadwick was thrown out the rear driver’s side of the car. She was air lifted to the Royal Adelaide Hospital. Her injuries caused Level 3 paraplegia, permanently confining Ms Chadwick to a wheelchair.

In his criminal case, Mr Allen pleaded guilty to a charge of aggravated harm caused by dangerous driving, and in January 2009 was sentenced to a suspended prison term of three years and four months and disqualified from holding a driver’s licence for five years.

Contributory negligence in the Civil Liability Act

In real life, several factors can cause an outcome. In the legal sphere, where attributing responsibility to an individual with legal capacity is everything, it can be difficult for the law to meet reality. One way in which the law attempts to meet reality in the Civil Liability Act is through the concept of contributory negligence. Where a person is found to be contributory negligent, the damages they receive will be reduced proportionately. Contributory negligence is defined in s.3 as “a failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection or for the protection of his or her own interests”. The Civil Liability Act creates presumptions of contributory negligence in certain situations. The two relevant presumptions in Allen v Chadwick are travelling with an intoxicated driver and failing to wear a seatbelt:

1.       Travelling with intoxicated driver (s.47)

Section 47(1) creates a presumption of contributory negligence if:

(a)         the injured person— 

(i)         was of or above the age of 16 years at the time of the accident; and 

(ii)         relied on the care and skill of a person who was intoxicated at the time of the accident; and 

(iii)         was aware, or ought to have been aware, that the other person was intoxicated; and 

(b)         the accident was caused through the negligence of the other person; and 

(c)         the defendant alleges contributory negligence on the part of the injured person, 

contributory negligence will, subject to this section, be presumed. 

Where the person was a passenger in a motor vehicle the person is presumed to rely on the care and skill of the driver (s.47(4)). Ordinarily the fixed statutory reduction for contributory negligence under s.47 is 25%. However, in the case of a motor accident, where the blood alcohol concentration was .15g/100mL or more, or the driver was so much under the influence of intoxicating liquor or drug as to be incapable of exercising effective control of the vehicle, the statutory reduction in the assessment of damages is increased to 50% (s.47(5)). An exception to the presumption of contributory negligence exists where the person could not reasonably have been expected to have avoided the risk (s.47(2)(b)).

Essentially, unless an exception can be made out, in situations where a person is injured in a car crash where they were aware or ought to have been aware a person was intoxicated, they will be held 50% responsible for the situation under the Civil Liability Act. This is a law not many people who get in cars with intoxicated drivers are aware of. The law assumes an injured person was 50% responsible when they are injured in a car crash, simply because the person decided to get in the car and had knowledge or ought to have knowledge of the fact the driver was intoxicated.

2.       Failing to wear a seatbelt (s.49)

Section 49 creates a presumption of contributory negligence where a person is injured in a motor vehicle accident and is not wearing a seatbelt. The fixed statutory reduction in the assessment of damages is 25% (s.49(3)). An exception to the presumption exists where it can be established on the balance of probabilities that the injured person could not reasonably be expected to have avoided the risk.

Legal question before the High Court

The two questions before the High Court were:

1.       Was the s.47 defence made out in that “the injured person could not reasonably be expected to have avoided the risk”; and

2.       Was the s.49 defence made out in that “the injured person could not reasonably be expected to have avoided the risk.

Section 47 travelling with an intoxicated driver

The facts established that before Ms Chadwick got in the car with Mr Allen driving, the car was situated about 200m away from the town on the highway. The immediate surrounds were shrubbery and trees. It was dark and an uncertain distance from the township in the early hours of the morning. Ms Chadwick was a young woman who was pregnant and her children were by themselves at the motel. The High Court held in their single, unanimous judgment, that the defence in s.47(2)(b) is concerned with the “reasonable evaluation of the relative risks of riding with an intoxicated river or taking an alternative course of action”. It requires an objective evaluation of the relative risks and contemplates a person may decide to get in a vehicle with an intoxicated driver where it may reasonably be assessed to be less risky than other unattractive alternatives. The test is objective, so subjective characteristics of an individual such as their hysteria, mental illness or personality are irrelevant to the s.47(2)(b) test. In weighing up the risks in Ms Chadwick’s case, the High Court observed that given the facts, there was a real risk of harm from strangers or the risk of walking over unfamiliar terrain in the dark if Ms Chadwick had not got in the car, and that the substantial risk of riding with Mr Allen was reduced by the absence of other traffic. The High Court held Ms Chadwick could not have been expected to avoid the risk of travelling with Mr Allen and her damages will not be reduced by 50% under s.47.

Section 49 failing to wear a seatbelt

At the trial before the District Court, a 25% reduction in damages was applied, as Ms Chadwick was not wearing her seatbelt and the defence of not reasonably being expected to have avoided the risk was not made out, as there were straight sections of road in which Ms Chadwick could have put her seatbelt on, and her inability to do so was found to be related to her own anger at Mr Allen and her pulling the straps too hard. The majority of the Full Court of the Supreme Court overturned the District Court’s decision and held that Mr Allen’s erratic driving caused the seatbelt mechanism to lock, and that the defence in s.49(2) of not reasonably being expected to avoid the risk was made out.

In deciding whether Ms Chadwick was prevented by Mr Allen from fastening her seatbelt, the High Court favoured the trial judge’s approach, as the trial judge had heard Ms Chadwick’s evidence first hand. The High Court also considered whether the “act of a stranger” defence was available. The “act of a stranger” defence was developed in the South Australian case of Mayer v Merchant (1973) 5 SASR 567 where it was said it is normally a defence to a criminal charge where the “forbidden act occurred as the result of an act of a stranger...over which the defendant had no control and against which he could not reasonably have been expected to guard”. Citing Norcock v Bowey [1966] SASR 250, the High Court held that the defence was not made out as it was not enough to show reasonable care had been taken, the circumstances must have been completely beyond the person’s control.

Lessons to learn

From a legal perspective, Allen v Chadwick confirms that the test for the defence in s.47 is an objective test that requires the weighing of different risks. It also confirms that the “act of a stranger” defence requires circumstances to be beyond the person’s control, and is therefore a difficult defence to establish.

Practically speaking, Allen v Chadwick demonstrates why we should all think carefully before getting in the car with an intoxicated person. The South Australian civil liability regime will automatically apply the 50% reduction in s.47 unless the defence can be established. Similarly, the threshold for the defence in s.49 for not using a seatbelt appears to be high. It is not an excuse to be fearfully pulling at your seatbelt and eventually giving up, even if the vehicle is being driven dangerously at timess.

Lawful deductions and set-off - When can your employer deduct money from your pay? Can an amount an employer owes you be set-off against an amount an employer has already paid?

Human resources teams are humans too. Sometimes they overpay an employee. Sometimes they underpay an employee. Sometimes they forget to pay employees award entitlements like overtime. In this blog post I investigate the situations where an employer can deduct money from your pay and the situations where an employer can off-set an amount they owe you from an amount they have already paid.   

Relevant provisions of the Fair Work Act 2009

Section 323 of the Fair Work Act 2009 describes the method and frequency that an employer must pay an employee amounts payable to the employee, such as wages, bonuses and loadings. An employer must pay amounts payable in full, in money, at least monthly. The money can be paid in cash, by cheque, electronic funds transfer or a method authorised under an award or enterprise agreement (s.232(2)). Section 324 permits an employer to make deductions from an amount payable to an employee if one of four situations exist:

a. the deduction is authorised in writing by the employee and is principally for the employee's benefit; or

b.  the deduction is authorised by the employee in accordance with an enterprise agreement; or

c.  the deduction is authorised by or under a modern award or an FWC order; or

d. the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.

Many employees are not aware that where the deduction is not authorised by an award, enterprise agreement, FWC or court order or another law, the employee’s written permission is required and the ‘principally for the employees benefit’ test must be satisfied before an employer can deduct an amount from an employee’s pay. The employee may withdraw their permission for the deduction at any time (s.324(b)). If the employer wishes to vary the amount deducted, this variation must also be agreed to in writing by the employee (s.324(3)).

Section 326 supports the application of s.324, providing that a term of a modern award, enterprise agreement or contract of employment that permits an employer to deduct an amount from an amount that is payable to an employee or requires an employee to make a payment to the employer or another person is invalid to the extent the deduction or payment is:

(i)                 directly or indirectly for the benefit of the employer, or a party related           to the employer; and

(ii)                unreasonable in the circumstances.

Can an employer set-off an amount it owes you against another amount it has already paid you?

A common situation arises where an employer has been paying the employee more than the applicable award rate for wages and when the employer is then found to owe the employee an award entitlement such as penalty rates, the employer sets off the amount owed with the excess amount already paid to the employee. This practice is called a set-off and is only permitted in certain situations.

Set-off at common law

At common law, whether a set-off is permitted will depend on the purpose for which the sum already paid was made and the nature of the amount the employer owes the employer. The principles of set-off in the employment law context are as follows:

·   Where there is a contractual arrangement the employer will pay the employee sums over and above or extraneous to award entitlements, the contract prevents the employer from relying on these additional payments to satisfy award entitlements outside the agreed purpose of the payments - Poletti v Ecob (No 2) (1989) 91 ALR 381 per Keely, Gray and Ryan JJ.

·   Where there are outstanding award entitlements, a sum that had already been paid to the employee designated for a purpose other than the satisfaction of the award entitlement cannot afterwards be said to have satisfied the award entitlement - Poletti v Ecob (No 2) (1989) 91 ALR 381 per Keely, Gray and Ryan JJ.

·   The critical question is whether the relevant award entitlements arose outside the contractually agreed purpose. While there must be a close correlation between the nature of the contractual obligation and the nature of the award obligations, it is not necessary that the same label be used - Australian & New Zealand Banking Group Limited v Finance Sector Union of Australia (2001) 111 IR 227.

·   An excess payment must be specifically designated at the time of payment, for example, for overtime or call-back, if it is then later to be used by the employer to set-off overtime or call-back entitlements under an award. Timely designation is important - Logan v Otis Elevator Company Pty Limited (1999) 94 IR 218.

·  In James Turner Roofing v Peters (2003) 132 IR 122, Anderson J distilled the authorities into five key principles:

1. If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid for that work; then the whole of the amount paid can be credited against the award entitlement for the work whether it arises as ordinary time, overtime, weekend penalty rates or any other monetary entitlement under the award.

2. However, if the whole or any part of the payment is appropriated by the employer to a particular incident of employment the employer cannot later claim to have that payment applied in satisfaction of his obligation arising under some other incident of the employment. So a payment made specifically for ordinary time worked cannot be applied in satisfaction of an obligation to make a payment in respect to some other incident of employment such as overtime, holiday pay, clothing or the like even if the payment made for ordinary time was more than the amount due under the award in respect of that ordinary time.

3. Appropriation of a money payment to a particular incident of employment may be express or implied and may be by unilateral act of the employer debtor or by agreement express or implied.

4. A periodic sum paid to an employee as wages is prima facie an appropriation by the employer to all of the wages due for the period whether for ordinary time, overtime, weekend penalty rates or any other monetary entitlement in respect of the time worked. The sum is not deemed to be referable only to ordinary time worked unless specifically allocated to other obligations arising within the employer/employee relationship.

5. Each case depends on its own facts and is to be resolved according to general principles relating to contracts and to debtors and creditors.

In Linkhill, the Federal Court indicated these principles are consistent with Poletti and other authorities, and that in principle 1, such payment should be designated as “all-in” or all inclusive. 

·         While it is not yet settled, there have been suggestions by the Federal Court that the above principles may not apply to situations where parties did not intend to provide for award entitlements at all. For example, in situations where the employer believed the employee to be an independent contractor, and a court later determines that an employment relationship existed - Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99.

Key Case - Poletti v Ecob (No 2) (1989) 91 ALR 381

The key Federal Court case for set-off in the employment law context is the decision of Poletti v Ecob (No 2) (1989) 91 ALR 381. Poletti ran a horse training business and employed Mr Hunt as a foreman to train horses. The applicable award was the Horse Training Industry Award 1976–1982 (the Award). Prior to commencement Poletti and Mr Hunt came to an agreement that Mr Hunt would be paid $50 more a week than his previous job. Mr Hunt and his family lived in accommodation above the stables. Mr Hunt was paid weekly in cash, and was paid an additional amount to that which was agreed (additional cash payments). Except for two days in 1986, Mr Hunt took no annual leave and was paid extra in lieu of annual leave at his request. He was also paid extra in lieu of public holidays on which he worked. At first instance before the Chief Industrial Magistrate, Mr Hunt successfully argued he was entitled to be paid annual leave, wage, public holiday and overtime entitlements under the Award.

In their joint judgment, Justices Keely, Gray and Ryan outlined two key principles (at 393):

·   where there is a contractual arrangement the employer will pay the employee sums over and above or extraneous to award entitlements, the contract prevents the employer from relying on these additional payments to satisfy award entitlements outside the agreed purpose of the payments; and

·   where there are outstanding award entitlements, a sum that had already been paid to the employee designated for a purpose other than the satisfaction of the award entitlement cannot afterwards be said to have satisfied the award entitlement.

In applying these principles to Mr Hunt’s case, the Full Court found the intention of Poletti and Mr Hunt in their contractual arrangement was to come fix remuneration for the total number of hours to be worked by Mr Hunt each week. The additional cash payments could therefore be treated as satisfying the employer’s obligations in outstanding payment of wages for ordinary time worked. Mr Hunt was also given additional payments for annual leave, so the outstanding annual leave owed by the employer under the Award could be set-off against this amount. There was no evidence of additional payments being made for the specific purpose of public holidays, so the employer still owed this amount to the employer under the Award. The employer could not offset money owed under the Award for overtime, as the additional cash payments had not been made for this purpose.

In Poletti, the Full Court applied two earlier cases:

11. Decision of the NSW Industrial Relations Commission in Ray v Radano [1967] AR(NSW) 471 (Ray v Radano)

In Ray v Radano, a chef claimed he was owed overtime payments under the applicable award, and that weekly payments made by the employer (which were in excess of the award rate), were only in respect of ordinary time. The NSW Industrial Relations Commission held that to the extent the amount paid each week exceeded the rate prescribed by the award, this could be treated as a payment in respect of overtime. While all judgments reached the same outcome, Justices Richards and Sheehy in their joint judgment took a different view on the applicable principles to Sheldon J, but Sheldon J’s judgment has been preferred in subsequent cases, including in Poletti.

Richards and Sheehy JJ were of the view “if the moneys received by him were not received for wages but for some other purpose, for example, for fares or as a uniform allowance, he would have to provide this fact in order to establish that such moneys were not to be taken into account in determining the correct balance due to him for wages”.

Sheldon J (whose judgment was favoured in Poletti and other subsequent Federal Court cases) disagreed with this principle: “I can see no difference in principle between an amount promised in excess of the award requirement whether the promise is for, say, a uniform allowance or for a payment confined to ordinary time only. In each case, the employee works on the basis that he will receive an extra-award payment and, in my opinion, it is not to the point that in one case its subject matter is clothing and in the other additional remuneration for a nominated period of work. If one cannot be set-off, neither can the other because their essential character is identical, i.e., both are payments in fulfilment of a promise extraneous to the award obligation”.

22.Decision of the NSW Industrial Relations Commission in court session in Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 416 (Pacific Publications)

Mr Clarkson was employed as an A grade journalist by Pacific Publications. He was retrenched and was entitled to $6,203.20, being 16 week’s pay in lieu of notice under the applicable award. Mr Clarkson received a number of payments from Pacific Publications including a $4,000 “Special Gratuity” payment. Pacific Publications later agreed to pay the 16 weeks, but only forwarded a cheque for $2,203.20 and claimed the $4,000 “Special Gratuity” payment constituted the remainder of the 16 week’s pay in lieu of notice.

The NSW Industrial Relations Commission preferred the judgment of Sheldon J to the majority in Ray v Radano and held that the “special gratuity” payment was not intended to be a payment in lieu of award notice on termination, as the company clearly appropriated the payment as a “special gratuity” extra-award payment at the time it was made. The $4,000 could not be set-off against the payment in lieu of notice Pacific Publications owed to Mr Clarkson.

Set-off and sections 323 and 324 of the Fair Work Act 2009?

Sections 323 and 324 are only engaged where amounts are payable in a relevant period in relation to the performance of work including incentive based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, and leave payments. The sections only apply to an amount payable. If the amount owed to an employee is not an amount payable, sections 323 and 324 will not disrupt the operation of the principles of set-off described above.

The Federal Circuit Court case of Palmer v DDR Plumbing & Gas Fitting Pty Ltd [2015] FCCA 2086 is illustrative of a situation where a deduction made was not an amount payable under s.323 and therefore did not breach s.324.

In Palmer v DDR Plumbing, DDR Plumbing was seeking to set-off overtime payments owed to an apprentice plumber under the award with payments made in excess of award rate. Judge Smith found the amounts could be set off as there was a close correlation between the amounts paid under the contract for time worked up to 7pm and the award obligation to pay overtime rates.

There was a further issue in that tools owned by DDR had been stolen while the tools were in the possession of the apprentice plumber. The tools were worth $5,000. DDR had deducted the cost of replacing these tools from the apprentice’s annual leave entitlements. Amounts compensating for stolen goods are not an allowable deduction under s.324. DDR would be required to pay the annual leave under s.323 if it was “amounts payable to the employee” at the time they were deducted. Judge Smith found there was no obligation on DDR to pay the applicant annual leave at the time the deduction was made and therefore the deduction did not breach obligations under s.90 (payment of annual leave) or s.323. 

Summary

Whether a set-off is permitted is dependent on:

·        1.Statutory considerations

Whether the amount in question is an “amount payable to the employee” under s.323. If the amount is an amount payable to the employee, s.323 and s.324 must be complied with where the set-off involves a deduction.

·        2.Principles of set-off at common law

The first step is to identify:

o   the purpose for which the additional payments were made to the employee; and

o   the purpose of the amount the employer owes the employee.

The second step is to consider the principles of set-off at common law (discussed above) to see if the set-off is permitted. and apply the principles discussed above.

·        3.Terms in awards, enterprise agreements and employment contracts

In particular, look out for annualised salary provisions in awards and set-off clauses in employment contracts.

Why do lawyers work such long hours? The National Employment Standards and how they fail to protect lawyers from working long hours

One of the common experiences of graduate lawyers working in commercial law firms is long hours. Adjusting to working 12 hour+ days and having to work part or all of the weekend is something many law graduates have to contend with. The legislated working week is a maximum of 38 hours. How is it then that a 60+ working week has become normal for most lawyers working at commercial firms (and other professionals such as those working in the finance industry)? Why do lawyers miss out when it comes to penalty rates and overtime? In this blog post I explain why the National Employment Standards do not protect lawyers from long working weeks and how it is difficult for an employee to bring a case against an employer for working excessively long hours. 

The National Employment Standards (NES)

The National Employment Standards contained in the Fair Work Act 2009 are basic minimum standards that apply to every national system employee (s.60). The maximum weekly hours of work is contained in s.62:

Section 62 - Maximum weekly hours of work

(1)  An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

                     (a)  for a full-time employee--38 hours; or

                     (b)  for an employee who is not a full-time employee--the lesser of:

                              (i)  38 hours; and

                             (ii)  the employee's ordinary hours of work in a week.

The specification of a 38 hour working week only provides very limited protection, as an employee is also required to work all additional hours that are not unreasonable. Section 62 specifies the criteria that must be taken into account when determining if additional hours are reasonable:

(3)  In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a)  any risk to employee health and safety from working the additional hours;

(b)  the employee's personal circumstances, including family responsibilities;

(c)  the needs of the workplace or enterprise in which the employee is employee;

(d)  whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e)  any notice given by the employer of any request or requirement to work the additional hours;

(f)  any notice given by the employee of his or her intention to refuse to work the additional hours;

(g)  the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h)  the nature of the employee's role, and the employee's level of responsibility;

(i)  whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

(j)  any other relevant matter.

The criteria to consider in deciding whether additional hours are unreasonable gives the section relatively little “bite”, although the criteria are more employee friendly than the predecessor provision (s.226(4) Workplace Relations Act 1996). For lawyers, subsections 3(c) and 3(g) are of particular note in that employers will argue the needs of the workplace require lawyers to work long hours and that usual hours worked in commercial law are long. The more senior a lawyer is, the more likely it is that additional hours will be reasonable, as the nature of the employee’s role and level of responsibility must be taken into account (s.62(3)(h)). The Explanatory Memorandum to the Fair Work Bill 2009 suggests that the significant remuneration and other benefits paid to senior managers alone may be sufficient to ensure additional hours are reasonable.

What about employment contracts, awards and enterprise agreements?

Paid overtime provisions in awards and enterprise agreements protect some workers from long working hours, as the increased costs for the employer act as a deterrent. Section 147 of the Fair Work Act 2009 requires modern awards to specify what constitutes ordinary hours for each type of employment they cover. Time worked outside ordinary hours is generally required to be paid at overtime rates. 

In award heavy industries like hospitality, nursing and trades, awards generally provide for a standard working week and heavy overtime payments for any hours worked outside standard hours. While some lawyers working in-house or in the public sector may be covered by an award or enterprise agreement that provides for overtime payments, most lawyers working in commercial law firms will not be covered by an award or enterprise agreement.

Law graduates covered by the Legal Services Award 2010 will receive certain protections, such as overtime payments. For example, the current standard hourly rate for a law graduate under the Legal Services Award 2010 is $23.23, but increases to:

·         $34.85 for the first three hours of overtime worked on a week day (time worked before 7am or after 6:30pm);

·         $46.46 for overtime hours worked after 3 hours of overtime on a week day;

·         $34.85 for time worked on Saturday for the first three hours worked before 12 noon;

·         $46.46 for time worked on Saturday after the first three hours of overtime worked before 12 noon;

·         $46.46 for time worked on Saturday after 12 noon; and

·         $46.46 for time worked on Sunday.

These increased rates act as a disincentive for graduates covered by the Legal Services Award 2010 from being required to work on the weekend and outside of ordinary hours during the week. However, law graduates are only covered by the Legal Services Award 2010 for a short time, as law graduates cease to be covered by the award upon being admitted to practice.  

It is possible for hours of work to be agreed to in the employment contract. However, this is rare in the legal sector, and when lawyers sign contracts with their firm, typically there is just an “understanding” over the working hours that will be required (see Walsh v Wayne Motors (1996) 65 IR 76).

Is it possible to win a long working hours case in Australia?

1.       Breach of NES

As discussed above, section 62 of the Fair Work Act 2009 provides a working week of 38 hours plus additional reasonable hours. In Premier Pet Pty Ltd v Brown (No 2) [2013] FCA 167 an employee Mr Brown was successful in bringing an adverse action claim against his employer when Mr Brown was terminated after he exercised his right under s.62 to refuse to work additional hours. Mr Brown was employed on a permanent full time basis by Premier Pet as a fish keeper. Premier Pet introduced mandatory rostering for all staff in the Brisbane fish room for routine maintenance on the weekend and public holidays. This work had previously been done by a few staff members and the intention was to spread the load across all staff. Mr Brown had previously stated he only wanted to work 38 hours a week with occasional overtime. In considering the criteria in s.62(3) to determine whether extra hours are reasonable, the Federal Magistrate at first instance could not make a conclusion about the needs of the employer Premier Pet, as they had not led any evidence on this issue. The Federal Magistrate also focused on the fact Mr Brown had repeatedly made it clear he only wished to work 38 hours with only occasional overtime and that no negotiations had occurred before the overtime was imposed. Further, the employer had not shown that the additional hours “are not unreasonable”. The Federal Court agreed with the analysis at first instance that the additional hours were unreasonable.

Premier Pet shows it is possible for an employee to bring a claim under s.62. However, Mr Brown had been terminated when he made the application and relied on the adverse action provisions of the Fair Work Act 2009. It may be more difficult for employees who remain employed who exercise their right to refuse unreasonable hours under s.62 to bring a claim. The employer had also failed to bring evidence to show the additional hours were not unreasonable. This was a significant oversight on the employer’s part. The case may have gone the other way if the employer had tendered such evidence.  

2.       Breach of contractual or tortious duty of care – by expecting employee to work unreasonably long hours

In Koehler v Cerebos (Aus) Ltd (2005) 222 CLR 44 the High Ccourt rejected a claim for damages for an illness brought on by the stress of an excessive workload. The employee initially worked full time as a sales representative. She then took a part-time position as a sales representative, but was essentially required to do the same amount of work she had in her full time position. The employee became physically and psychologically ill as a result. Given the case was framed in negligence, the High Court had to consider the content of an employer’s duty of care and whether the test for foreseeability in Wyong Shirt Council v Shirt was satisfied. The High Court found the employer had not been negligent, as the employee “agreed to perform the duties which were a cause of her injury” and “the employer had no reason to suspect that the appellant was at risk of psychiatric injury”. Several employment law experts have indicated dissatisfaction with the reasoning of the High Court in Koehler, asserting the reasoning was twisted to prevent a floodgate of negligence claims based on injuries caused from working unreasonably long hours.

3.       Breach occupational health and safety obligations  

Where excessive working hours create a risk to the employee’s work health and safety, it may be possible for an employee to take action under the relevant work health and safety regime in their state. However, breaches of work health and safety obligations do not protect lawyers who are working long hours and not experiencing any work health and safety issues, so is overall a poor protection for employees working long hours.  

Cases concerning long working hours are relatively rare and when they have come before superior courts, the judiciary have been reluctant to create any precedent that could “open the floodgates”. If reform is going to occur in Australia, it will likely be statutory in the form of a strengthened NES. In the meantime, lawyers working at commercial law firms, without the protection of awards or enterprise agreements, are likely to continue to be required to work long hours.