Sunday, July 20, 2008

CASE NOTE: OH & S and staff car parking ...

In Health Services Union v Ambulance Service of NSW, President Boland J of the Industrial Relations Commission of NSW Sydney considered:

> whether a matter concerning health and safety of employees constituted an “industrial matter” under s6 of the Industrial Relations Act 1996 (NSW) which would trigger the NSW Commission’s power to arbitrate.

> whether protecting employees from injury should be extended to the employer subsidising secure parking for staff who choose to drive to work where the workplace is an area notorious for crime.

> the extent of any such subsidy.

In September 2006, the Health Services Union notified the Commission of an industrial dispute with the Ambulance Service about the safety of ambulance drivers and other staff accessing the Sydney Ambulance Centre (SAC). The Centre was located in the Sydney Technology Park in the inner-city suburb of Redfern, “an area notorious for crime”. Staff had no secure and dedicated parking area, and the Ambulance Service had received reports of staff being assaulted and their vehicles interfered with, especially at night. The Centre also operated as a 24 hour Ambulance Station.

Some 11 months prior to this, the employer had commissioned a risk management/OHS staff member to conduct a security risk assessment. That assessment showed a severe risk of staff being assaulted on afternoon and night shifts when walking from their car to the Centre. There was also a high risk of damage to or theft of cars parked in the street. The Ambulance Service requested more police patrols and offered a staff escort where requested. However, staff escorts were not always available.

After some conciliation attempts by the Commission, the Service offered staff access to 50 dedicated car spaces in the Sydney Technology Park, though these would be available on a user pays basis at a maximum of $76.15 per fortnight. The matter was further complicated by the relocation of the Aeromedical & Medical Retrieval Services Unit (MRU), also part of the Ambulance Service, from St George Hospital to the SAC. MRU staff had enjoyed subsidised secure parking of $2 per week at St George Hospital and said refused to relocate to SAC unless secure parking was available. The Ambulance service offered to subsidise the cost of secure parking in Sydney Technology Park. The subsidy commenced at 75% of the employee cost and decreased by 25% each six months, ending after 18 months.

An interim arrangement was put in place whereby staff would park at the Ambulance Service State Headquarters and then be bussed to the SAC. In November 2007, after numerous more conciliations, the matter was referred for arbitration.

The Union insisted that MRU staff receive the same subsidy as at St George Hospital, and that remaining staff should be given “secure parking … accessible safely to all persons required to attend for duty at the Sydney Ambulance Centre” at a cost of no more than $9.50 per week. Further, staff commuting by public transport be provided with an escort to and from public transport locations.

When the matter reached arbitration, the employer made a procedural point that the Commission may be impeded from making an award or order in the arbitration without the Full Bench sitting. The President of the Commission ruled the Commission was not so impeded. In particular, the President ruled that a matter concerning the health and safety of employees involving eliminating or alleviating the risk of harm to those employees was an “industrial matter” under s6 of the Act which would trigger the Commission’s arbitration power.

The Commission ruled that, as far as possible, any employer subsidy of parking should apply equally to Ambulance Service staff, whether original Centre staff or relocated MRU staff. The Commission found there was a severe risk of assault to staff walking to and from their vehicles parked in the street. This meant any measures for protection of staff by the employer include the Ambulance Service subsidising car parking. The amount of the subsidy would vary depending on the number of employees requesting secured parking. The Commission ordered such a subsidy be provided and set out the terms of the subsidy.

Ensuring employee safety can include provision of secured parking subsidised by the employer, especially where the employer’s premises are in an area known to be notorious for crime.
Health Services Union v Ambulance Service of New South Wales
(11 April 2008)

Words © 2008 Irfan Yusuf

A new form of personal property?

The Australian Financial Review reported on Friday 18 July 2008 about some of the legal implications of the proposed emissions permit scheme.

Alex Abaxial writes ...
Emissions permits would create an entirely new form of personal property.

The story quotes a partner of Clayton Utz praising the proposal for not treating permits as mere licenses, instead opting for a situation where ...

you [can] do things like use it for security and to contract for equitable interests over it … [I]t becomes a free-flowing instrument within the Australian marketplace.

The story also reports about the impact of emission permits on fixed-price contracts. Companies are consulting lawyers “on ways to amend [their contracts] to pass price increases through to their customers” through the use of “carbon clauses” operating in a similar fashion to clauses used when the GST was introduced.

It will be interesting to see the extent to which Australian commercial and legal practice in this area is influenced by experience in the EU.

Words © 2008 Irfan Yusuf

Friday, July 04, 2008

EVENT: Launch of latest edition of anti-terror laws guidebook ...

I received the following e-mail from the good folks at AMCRAN ...

Dear friends,

You are warmly invited to the third edition launch of the publication series Anti-Terrorism Laws: ASIO, the Police and You.

This series of publications is designed to educate the community on their rights and responsibilities under Australia's counter-terrorism laws. It is presented in four languages: English, Arabic, Bahasa Indonesia, and Urdu. The third edition covers new areas of law introduced since the first edition in 2004, including the association offence, sedition, preventative detention and control orders. This publication is essential reading, and provides a concise, simple, yet thorough coverage of the laws that all Australians should be aware of and understand.

The booklets will be distributed at no cost at the launch, and will also be available from AMCRAN's website ( in all four languages after the launch.

This project would not have been possible without the generous funding support of the Law and Justice Foundation of NSW, the UTS Law Faculty and UTS Students Association.

When: Thursday
17 July 2008
Time: 10 am – 12 pm
Where: Lansdowne Room, Bankstown Town Hall, Cnr Chapel & Rickard Rds,

Speakers include:

Mr Peter Russo, Defence lawyer of Dr. Mohamed Haneef
Dr Zachariah Matthews, President, Australian Islamic Mission; Board Member, AMCRAN
Ms Marika Dias, Solicitor, Convenor of Anti-Terrorism Laws Working Group, Federation of Community Legal Centres (Vic) Inc.
Mr Geoff Mulherin, Director, Law and Justice Foundation

RSVP by Friday 11 July 2008 essential:

For more information please contact Ayishah Ansari, Legal Convenor NSW, at

We look forward to seeing you at the launch.

Yours sincerely,

Australian Muslim Civil Rights Advocacy Network (AMCRAN)
Australian Muslim Civil Rights Advocacy Network
PO Box 3610Bankstown NSW 2200
Tel: (02) 9708 0009
Fax: (02) 9708 0008

Here is the actual invitation card (click on it to view enlarged version) ...

CRIKEY: Tabloid journalists and the presumption of innocence

OK, I'm now going to try to make this blog a little more active. So I'll start with this entry published in Crikey today ...

Tabloid journalists and lawyers have a strange relationship. Tabloid journos often have little regard for the legal rights, privacy, presumption of innocence or reputation of (especially accused) persons they report on. So I found it quite ironic when a tabloid journo threatened me some years back with a defamation suit. S/he was unhappy with my description of his/her/its ridiculous reporting of a chap s/he claimed was a terrorist.

The chap was actually accused of keeping bomb-making materials in his house. The police had already ruled out terrorism-related charges. But for the journo reporting the incident, the accused was a Muslim who had framed Arabic calligraphy on his walls and a Koran and some religious books in his bookshelf.

Anyway, the point I’m trying to make is that some journos are quick to see accused deprived of their rights, without realising that their hysterical reporting threatens the rights of all of us. Journos included.

Rights that people have fought and died to defend over the centuries. Like the presumption of innocence, and the right to refuse to be interviewed by police. These rights form a key plank in our criminal justice system. In a liberal democracy, these rights form an important element of "The Rule of Law".

So when Ben Fordham accosted Belinda Neal and asked questions like "What have you got to hide?", he effectively suggested Neal’s exercise of a basic legal right was illegitimate. He basically said she must talk, if not to the police then to viewers of A Current Affair.

Now let’s put the shoe on the other foot. Let’s say Fordham or one of his camera crew were the subject of a police investigation for potentially assaulting Neal (as I hope they are), what would Fordham say if Neal suggested that he and/or his crew must submit to a police interview?

My guess is Fordham would cry foul and self-righteously claim political interference in the criminal justice system. Fordham might even instruct his lawyers to express their disgust at this political interference, both before the magistrate and the cameras.

Populist journos and politicians are crying foul over one Queensland judge’s decision to release convicted pedophile Dennis Ferguson after finding that media saturation had made it impossible for a jury to deal with the facts of Ferguson’s impending charges in a "dispassionate" manner, despite the weakness of the Crown’s case.

Instead of blasting the judge, tabloid journos and shock jocks need to consider how their own conduct is compromising our criminal justice system. These same shock jocks should ask themselves what would happen if they were accused of pedophilia or some other criminal offence. They should understand that even accused persons deserve human rights. After all, until they are convicted, they are innocent.

Tabloid media needs to understand the meaning of innocence. And before anyone accuses me of sounding like a typical criminal defence lawyer, allow me to disclose that my area of practice is employment and workplace relations law.

Copyright 2008 Irfan Yusuf