Legal List


certified agreements were directed at resolving potential inconsistencies between certified agreements and awards and did not appear to be directed at excluding awards.

In those circumstances the relevant certified agreement did not displace the right of entry provisions so the union still had a right to enter the employer’s workplace.

Alan Drake-Brockman, partner

9220 4912








Extended trading permit in Boulder to cater for shift workers

THE Director of Liquor Licensing recently approved an application lodged by the licensee of a Boulder hotel who sought a renewal of an extended trading permit between the hours of 7am and 10am on Sundays.

The renewal of the permit for a further two years was granted notwithstanding the local accord’s mandate to restrict the availability of alcohol in Kalgoorlie Boulder over a continuous 24 hour period.

The renewal was sought to cater for shift workers who, due to their hours of work, wish to consume alcohol with or without a breakfast on Sunday mornings.

The applicant’s evidence indicated that the City of Kalgoorlie/Boulder is a mining town with a revolving 24 hour roster system.

The application received interventions from the executive director of public health and the Commission of Police in relation to the extent of alcohol-related harm and crime in the Northern Goldfields Region.

The statistics referred to showed the consumption of liquor in the Kalgoorlie/Boulder area was alarmingly high with a high level of alcohol related harm in the region.

The director, in reaching his decision, had to weigh up the conflicting evidence addressing the objects of harm minimisation and the requirement to facilitate the use and development of licensed facilities reflecting a diversity of consumer demand.

The permit was granted on the basis that the renewal of the permit was in the public interest and that the service required by shift workers was not otherwise catered for in the Boulder area.

The director pointed out that neither interventions provided specific evidence to show that the hotel and its existing permit contributed to the harm or ill health caused in the City of Kalgoorlie/Boulder.

Further, the director concluded that there were no specific details that highlighted the importance of the accord agreement and no statement was lodged by the accord group in objection to the application.

The decision highlights the fact that an extended trading permit may still be granted to a licensed premises in a regional area with a high level of alcohol related harm.

An important consideration is whether evidence has been led to show that premises are operating irresponsibly or that the permit is contributing to the harm occurring in the area.

The decision also importantly considers that the effect of accords on the granting of extended trading permits and indicates accords will generally be taken into consideration if the accord group provides appropriate evidence at the proceedings.

Dominique Harfield, solicitor

9288 6868

Dan Mossenson, chairman of partners

9288 6769

Employer’s requirement for staff to attend medical assessments tested

THE Australian Industrial Relations Commission has recently decided that two employees’ refusals to undergo medical assessments were justified in the circumstances and so disciplinary action was not appropriate.

Two employees were absent from work due to illness of a psychological nature.

Ultimately they were both cleared by their own doctors to return to work but the employer expressed the view that if the employees returned in their current condition they may have risked themselves and others in the workplace.

The employer therefore required that the workers be reviewed by another doctor nominated by the employer.

On the advice of their union, both employees refused to attend the medical review as required by the employer.

The employer sent a forceful letter to each of the employees directing that they must attend the assessments, failing which it could be required to ‘consider other actions’.

The matter then went to the commission for determination as to whether the employer had the power to direct an employee to attend a health assessment.

The employer contended that it had a right under its regulations to direct employees to attend the assessments.

However, the commission looked at the complicated overlap of agreement provisions and statutory obligations covering the employment relationships and noted that both the employer and the union had misunderstood the impact of these obligations.

The commission found that the threat to take disciplinary and/or legal action against the employees as a consequence of the employees’ refusal to attend for medical assessments were not provided for in the applicable statute and was therefore not appropriate.

The commission further noted that whatever common law rights were open to the employer to force an employee to attend for a health assessment, those rights did not extend to requiring an employee to undertake a statutory health assessment in a way that was not provided for by the statute.

Carla Paratore, solicitor

9288 6940

Ian Curlewis, partner

9288 6756

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