Part A (Answer all questions)
All questions in this part are compulsory and must be answered in the same booklet. Refer to cases and legislation where appropriate. Part A will account for 20% of your total marks in this subject. (2 marks)
1. What has to be established before an action can be taken under section 18 of the Australian Consumer Law?
2. What are two matters that must appear in every modern award? 5. What are an employer’s obligations straight after a bargaining period has commenced?
3. What are an employer’s obligations straight after a bargaining period has commenced?
4. What is meant by the concept of good faith bargaining when bargaining an enterprise agreement?
5. What is an employee’s entitlement under the Fair Work Act 2009 (Cth) with regard to flexible working arrangements?
6. In what circumstances is a federal system employee entitled to compassionate leave? How much leave are they entitled to?
Part B (Answer All Questions)
Answer any three of the seven questions in this part. Answer all questions in the same separate booklet. Each question is worth ten (10) marks. Part B will account for 30% of your total marks in this subject.
Question 1
Between 2006 and 2012 about 288 Australians have been living organ donors each year. Such people have usually donated an organ to a family member, partner or close friend. The amount of time required for such an organ donation, particularly prior to the transfer when significant medical evaluations are carried out to determine suitability, means that living organ donors are often required to take leave without pay. This, consequently, has led to considerable financial burden for such donors.
Assume that the time has now come in Australia that it is considered that employed live organ donors should not suffer detriment for taking time off from work to make what many Australians view as an incredibly generous gift.
What do you think would be the best legal means by which to create an entitlement to paid leave for live organ donation?
Question 2
Anne’s daughter, Judy, has just obtained a place at a Sydney University to undertake an archaeology degree. The transition from living in the country to living in the city has not been an easy one for Judy, nor for Anne for that matter. Getting her daughter set up in Sydney has involved a number of trips to Sydney to arrange accommodation, transport, food and orientation and a settling in period. Just before first semester started Judy fell ill which meant that it was not possible for Judy to go to university at the arranged time. Anne arranged to take Judy to Sydney during the middle of the week.
Figjam Pty Ltd, an importer of jam preservatives, employs Anne. Anne asked her supervisor Kathy for a day off on carer’s leave so that she could take Judy to Sydney to start university. Kathy refused and said that Anne needed to take an annual leave day to do so. Anne pointed out that Kathy had just taken a day off on carers’ leave to assist her father in registering his car. Kathy said that was different.
Anne was also upset that one of her colleagues, Maria, had been asked to return from maternity leave four weeks after the birth of her child. Maria refused. When she did come back from maternity leave she found that the job she used to perform had been given to somebody else. When Maria inquired as to why that was so, Maria was told that now that she had had a baby the job that she used to do, that is, packing boxes of jam would be too strenuous for her. Maria does not like her new work and wants to return to her old position.
Discuss the legal rights of Anne, and Maria.
Question 3
Kimbon was the owner of CommSky Pty Ltd (CommSky) a company that carried on a mobile communications business from May 2005 to September 2015. The business sold radios, mobile telephones and other telecommunications and electronic equipment together with related software. One of the major suppliers of product to CommSky was Riola, for whom the business acted as a “premier dealer”. CommSky employed Glanville as its service manager and Humphries was as an installer. In June 2015, while still engaged to work for CommSky, Glanville and Humphries formed a partnership and commenced a business trading under the name of “DapComm”. Humphries left CommSky in July 2015.
When Glanville was service manager he was given full access to CommSky’s confidential internal files concerning its customer base and had access to special software that had to be purchased from Riola in order to sell Riola products. In May 2015 Kimbon took a holiday and largely left the running of the business to Glanville. Whenever a system was sold, a file was created with all the information, frequencies, programming and fleet details pertaining to the customer. The Riola premier dealership was an important part of CommSky’s business. Riola controlled its distribution network by means of a network of premier dealers, dealers and resellers. Riola equipment could not be sold without the Riola software required for programming it.
In August 2015 Kimbon received a call from Riola who advised that there had been an unusual amount of transactions involving them (Riola) and a business called DapComm. Kimbon conducted a business name search of DapComm that revealed that Glanville and Humphries were the proprietors of that business. He also discovered that DapComm was listed online with Yellow Pages in the same business category as CommSky and that the mobile phone provided to Glanville for use in connection with CommSky business was listed on the letterhead of DapComm stationery. The telephone account for the mobile phone also indicated that it was being used extensively to communicate with Humphries after she had ceased working with CommSky.
Is Glanville in breach of his contract of employment?
Question 4
On 22 April 2010 Bradley attended an Army recruitment unit in Townsville to inquire about joining the Army as a helicopter pilot. He was interviewed by Corporal Wilkinson who advised Bradley that eligibility for recruitment to the Army’s Pilot Scheme was restricted to persons aged between 19 and 28 years of age at the date of their appointment ("the 19- 28 Rule"). Bradley was 37. Bradley was given the following information brochure explaining the Pilot Scheme.
"SPECIALIST SERVICE OFFICER ARMY PILOT “
The Specialist Service Officer (SSO) Pilot Scheme is a scheme to produce sufficient pilots on short service commissions to operate the Army's aircraft. The scheme is open to civilian and Service applicants