Supervised legal practice - how to satisfy the two year requirement

Completing a Bachelor of Laws (or equivalent qualification) and a Graduate Diploma of Legal Practice will enable a law student to apply to be admitted as a legal practitioner in the Supreme Court of their state and obtain a practising certificate. This is not where the process of becoming a lawyer ends. Two years of supervised practice on a conditional practising certificate is required in most Australian jurisdictions before a junior lawyer can remove the condition from their practising certificate and practice as an unsupervised lawyer. So how does supervised practise work? In this blog post I examine supervised legal practice requirements in NSW, Victoria and South Australia. Requirements vary across jurisdictions so always make sure you double check your local profession rules.  

New South Wales and Victoria

Overview

The Legal Profession Uniform Law (Uniform Law) and Legal Profession General Uniform Rules 2015 (Uniform General Rules) have been incorporated in both New South Wales and Victoria laws, harmonizing legal profession rules in these jurisdictions. Section 49 of the Uniform Law provides that a holder of an Australian practicing certificate can only engage in supervised legal practice until a period or periods of two years of supervised legal practice has been obtained (or 18 months where the holder completed practical legal training principally under the supervision of an Australian lawyer to qualify for admission to practice). Section 49 uses the expression “period or periods”, and the supervised legal practice can be completed in one period of work on a full time basis (or part time equivalent), or two or more periods of work on a full time basis (or part time equivalent) that is equivalent to the period of supervised practice required (Rule 14 Uniform General Rules). Note this differs from other jurisdictions such as South Australia which requires the period of supervised legal practice to be “continuous”.  The relevant local regulatory authority in NSW or Victoria can exempt a person from the supervision requirement if satisfied the person does not need to be supervised or only needs supervision for a shorter period (s.49(4)).

Who can supervise?

The following Australian legal practitioners can provide supervision:

1.     A lawyer employed in a law practice where at least one legal practitioner at the law practice is an authorized principal and the legal practitioner engages in practice under the supervision of the authorized principal;

2.     A principal (or partner) of a law practice where the principal engaged in practice under the supervision of the authorized principal;

3.     A lawyer engaged as a corporate legal practitioner (ie an in-house lawyer working for a bank) where the person holds, or is eligible to hold but is exempt from holding a practicing certificate, authorizing the holder to supervise legal practice by others; and

4.     A lawyer engaged as a government legal practitioner (ie an in-house lawyer working in a government department) where the person holds, or is eligible to hold but is exempt from holding a practicing certificate, authorizing the holder to supervise legal practice by others.

Do not assume your supervisor at work can supervise you. Ask to see their practicing certificate and look at the conditions on the certificate. Make sure there is no condition exempting the lawyer from supervision. Where your supervision is coming from an in-house corporate lawyer or a government lawyer, where the person holds a practicing certificate make sure the certificate states that the holder is authorized to supervise legal practice of others.

It is in your interest to get the best quality legal supervision possible. Your supervisor should be experienced, provide support and regular feedback sessions, and be able to amend, override or intervene in relation to your legal work performed where appropriate.

What kind of work falls within the definition of “legal practice”?

Legal practice includes practising law or providing a legal service but does not include engaging in policy work, including developing and commenting on legal policy (see s.6 Legal Profession Uniform Law). A legal service is work done or business transacted in in the ordinary course of legal practice.

The Victorian Legal Services Board relies on the case of Cornell v Nagle [1995] 2 VR 188 in deciding what falls within the definition of legal practice. Work that falls within the definition includes but is not limited to:

• Giving legal advice;
• Interpreting and applying legislation or case law for use of a client, whether or not for fee; and
• Drafting legal documents

Work that does not fall within the definition of legal practice includes but is not limited to:

• Paralegal work;
• Working as a judge’s associate;
• Policy work;
• Working as a conveyance;
• Working as a migration agent;
• Working as a tax agent; and
• Working as a patent attorney.

Note that the work that is considered legal practice varies between jurisdictions. For example, while working as a judge’s associate is not considered legal practice in Victoria and NSW, in South Australia working as a judge’s associate is considered legal practice and time spent working as an associate to a judge can count towards supervised legal practice.

Applying to remove conditions of practice

After the two years of supervised practice have been completed, a lawyer can apply to amend their practicing certificate to remove the condition. The condition is not automatically removed. For example, in NSW, a lawyer must complete a statutory declaration, and attach letters from their supervisor or supervisors for the period and submit the application to the Law Society of NSW. In Victoria a lawyer must also complete a statutory declaration and provide a letter from their supervisor or supervisors to apply for the removal of the condition

South Australia

Overview

Rule 3 of the Legal Practitioners Education and Admission Council Rules 2004 (LPEAC Rules 2004) provides that a person admitted to practice cannot practice as a principal until they have completed two years of supervised practice (18 months where the applicant has spent at least 12 months in “articles of clerkship in South Australia”). The supervised practice can be completed in South Australia or in another State or Territory. The following types of work can constitute supervised legal practice:

1.     A continuous period of two years full time employment as an employed practitioner (or part time equivalent);

2.     A continuous period of two years full time work as a volunteer practitioner (or part time equivalent);

3.     A combination of working as a full time employed practitioner and volunteering as a practitioner for two years (or part time equivalent); and

4.     A continuous period of 18 months as an employed practitioner where the person has completed no less than 12 months service in articles of clerkship in South Australia.

A “continuous period” does not have to be with the same lawyer, but can be several jobs that make up the period. The jobs must be “continuous”, though this term is not defined in the LPEAC Rules. The LPEAC board reserve the discretion to permit discontinuous periods of employment, so even if periods of supervised practice are not continuous it may be still be possible to put this experience towards supervised legal practice where a special application is made to LPEAC. LPEAC may exempt any person from the requirements of any of the LPEAC Rules (r. 10.1).

Who can supervise?

Supervised practice can be provided by a legal practitioner entitled to practice as a principal. The supervised practice must occur at the location where the principal conducts his or her practice. Practically speaking this means the supervisor must hold a Category A or Category B principal practising certificate. Rule 3B describes Category A and Category B practicing certificates as follows:

Category A – a principal practising certificate which enables the practitioner to practise as the principal of a law practice entitled to receive and manage trust monies.

Category B – a principal practising certificate which enables the practitioner to practise as a principal of a law practice but not entitled to receive and manage trust monies, which category shall include practitioners who only practise as barristers.

The safest way to ensure your supervisor is able to provide supervised legal practice is to sight a copy of their practicing certificate and check it is a Category A or Category B certificate. Note that the supervisor and junior lawyer must be located in the same physical location unless approval has been granted by the Board of Examiners.  

Supervisors and newly admitted practitioners should read the Guidelines for the Supervision of Newly Admitted Practitioners (Guidelines) which were recently approved by LPEAC on 22 July 2016. The Guidelines provide a list of competencies that a supervisor must address to ensure adequate formal legal training:

·         Interviewing clients, taking instructions and generally dealing with clients;

·         Advising, orally and in writing;

·         Undertaking legal research;

·         Ascertaining and analysing facts against the legal framework of a matter;

·         Legal writing, including:

o    Correspondence;

o    Pleadings;

o    Contracts/deeds/equivalent.

·         Advocacy, dispute resolution/negotiation;

·         Planning the ongoing conduct of matters.

What kind of work falls within the definition of “legal practice”?

After you have found an appropriate supervisor you need to ensure the work you are doing can count towards supervised legal practice. Work that can count towards supervised legal practice is work where the supervised lawyer is engaged to perform predominantly the work of a legal practitioner:

(i)         in a private law practice;

(ii)         in a government department or semi-government authority, if the employment requires the performance of the work of a legal practitioner which the Council considers appropriate for the purposes of these rules;

(iii)        in a corporate legal office;

(iv)        in a community legal service;

(v)        in the office of the Crown Solicitor, the Director of Public Prosecutions, the Commonwealth Australian Government Solicitor or the Commonwealth Director of Public Prosecutions;

(vi)        in any other organisation, department or office which the Council approves for the purposes of this rule;

(vii)       as a judge’s associate which work so qualifies.

The work undertaken must be predominantly the work of a legal practitioner. “Work of a legal practitioner” is not defined in the LPEAC Rules and is not discussed in the Guidelines. However, the competencies discussed above give an indication of the type of work that should be undertaken. 

Applying to remove conditions of practice

To remove the condition from your practicing certificate, a statutory declaration and supporting letter from the supervisor must be submitted to the Board of Examiners.

Good luck with your first two years as an admitted practitioner. Take the steps now to ensure that your work can count towards supervised practice.

Work Christmas parties – lessons from the 2015 Christmas season

Christmas season is here again meaning there will be a string of work Christmas parties and functions for employees to attend. In December last year I wrote about Keenan v Leighton BoralAmey NSW Pty Ltd[2015] FWC 3156, a complicated unfair dismissal case resulting from an employee’s inappropriate behavior both before and after a work Christmas function in 2014. There still appears to be a need to educate employees about behavior at work Christmas functions, as the wave of unfair dismissal cases resulting from work Christmas parties continues. In this blog post I will summarize the case of McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343.

Key principles

A work Christmas party is a work event, meaning the employer’s policies and codes of conduct will generally apply to employees at work Christmas parties. Behavior management and disciplinary processes for breach of a policy or code of conduct will be the same for behavior at a work Christmas party as for behavior during ordinary work hours.  Inappropriate behavior at a work Christmas party can be sufficient reason for dismissal, particularly where the behavior effects the safety and welfare of other employees.

Work Christmas parties ordinarily occur within a set time frame. Behavior that occurs after a work Christmas party has ended at an unofficial after party will not ordinarily be considered behavior that occurred in the course of employment. However, it is still possible for an employee to be dismissed from their employment for conduct that occurs outside the workplace.

McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343

Facts

Mr McDaid was employed by Future Engineering and Communication Pty Ltd (FEC) as a Project Coordinator. FEC held a staff Christmas event on 19 December 2014 which involved a day of go-karting followed by a Christmas party on FEC premises. FEC provided alcohol, soft drink and food, and did not provide any controls on the amount of alcohol consumed. The party was held in an area where there was a swimming pool. Although the conduct occurred on 19 December 2014 and Mr McDaid’s employment was terminated on 17 March 2015, and an application for unfair dismissal must be made within 21 days, a decision was not made until 2016 due to unsuccessful attempts at conciliation.

Mr McDaid had a history of behaving in an aggressive manner towards other employees in the workplace. He attended the go-karting event and then quickly became intoxicated at the Christmas party. He was aggressive towards Mr Sinna, a Design Engineer at FEC and pushed him several times in the chest. Mr Davies, FEC’s General Manager, intervened at one point and told Mr McDaid he should go home. After a short period, Mr McDaid continued to harangue Mr Sinna, became physically aggressive towards Mr Sinna and threw Mr Sinna into the swimming pool fully clothed.

Mr Davies approached Mr McDaid and told him to leave the premises. Mr McDaid then pushed Mr Davies twice, on the second occasion with such force that Mr Davies was propelled backward, hit the front gate of the premises and suffered some minor injuries. After Mr McDaid helped Mr Davies to his feet the two men started to exchange blows until Mr Davies hit Mr McDaid on the side of the head.

Mr McDaid’s employment with FEC was terminated on 17 March 2016 for reason of his behavior at the FEC work Christmas party. Mr McDaid filed an application for unfair dismissal with the Fair Work Commission. Conciliation failed and the matter was heard by Commissioner Williams.

Legal analysis

A national system employee to which the Fair Work Act 2009 (Cth) (Fair Work Act) applies is protected from unfair dismissal if they have served the minimum employment period (6 months or 12 months for small business employers), and if they earn less than the high income threshold (currently $138,900 per year) (see s.382 Fair Work Act). Mr McDaid satisfied this criteria. Section 385 provides that an unfair dismissal will have occurred where:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)  the dismissal was not a case of genuine redundancy.

In Mr McDaid’s case, the issue to be determined was whether the dismissal was harsh, unjust or unreasonable. Section 387 provides eight criteria the FWC must take into account when determining whether a dismissal was harsh, unjust or unreasonable:

1 Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

The three incidents that occurred during the Christmas party were each alone valid reason to dismiss Mr McDaid. Haranguing Mr Sinna, verbally abusing him, pushing him and throwing him in the pool was a valid reason for dismissal. Refusing to leave the property when directed to do so by the General Manager was a valid reason for dismissal. Initiating a fight with Mr Davies, and pushing him into the gate with such force he sustained minor injuries was a valid reason for dismissal.

2. Whether the person was notified of that reason

Mr McDaid was notified FEC was investigating his conduct at the Christmas party. Over a number of meetings between FEC and Mr McDaid in January 2016 and March 2016 it was made clear to Mr McDaid his behavior at the Christmas party was being investigated. After Mr McDaid was terminated on 17 March 2016 he was notified in writing of the reason for his dismissal.

3. Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

Mr McDaid was given numerous opportunities to respond. On the morning meeting held on 17 March 2016 he was given full opportunity to explain himself. At this meeting Mr McDaid read his version of events from a written statement he had prepared. FEC told Mr McDaid his version conflicted with other accounts and that they would respond later that day. Mr McDaid’s employment was terminated later that day on 17 March 2016.

4. Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

Mr McDaid had his support person Mr Horner, a Field Manager at FEC, present at discussions including those held on 17 March 2016, the date of dismissal.

5.  If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

The reason for dismissal was conduct at the Christmas party, not unsatisfactory work performance.

6. The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and

7. The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

FEC designs, manufactures, and installs communication towers, powerline infrastructure and associated equipment throughout Australia and has about 60 employees. As a medium sized business with no dedicated human resource employees the procedures followed were appropriate.

8. Any other matters that the FWC considers relevant.

The FWC noted Mr McDaid’s history of aggressive behavior towards colleagues in the workplace and that the behavior at the work Christmas party was not an isolated incident. The FWC also noted Mr Davies’ behavior on the night, especially given his role as General Manager. However, the FWC concluded the fight between Mr McDaid and Mr Davies was instigated by Mr McDaid and Mr Davies was therefore acting in self-defence.

Commissioner Williams dismissed the application and held that Mr McDaid was not unfairly dismissed and that this outcome was not surprising given his behavior.

Conclusions

Mr McDaid’s case was fairly clear cut. An employee cannot harass a colleague, throw a colleague into a pool, and start a physical altercation with the General Manager causing injury without expecting consequences. While not all cases are as clear cut, employees should be aware of the kind of conduct at a work Christmas party that may form a reason for dismissal. Instigating fights with colleagues, harassing colleagues, and even failing to leave the premises when directed may constitute valid reasons for dismissal. Employees are reminded that the standard of behavior ordinarily expected in their workplace will be the standard of behavior expected at the work Christmas party.

The consumption of alcohol is not an excuse for poor behavior, even where the alcohol is provided or paid for by the employer. In certain situations an employer may be held responsible for the provision of alcohol such as where a drunk employee falls down stairs. However, alcohol consumption is not accepted as an excuse for bad behavior and certainly not physically violent behavior.

Employers should be aware that the appropriate procedures to follow in conducting an investigation and making a decision to terminate an employee’s conduct will vary depending on factors such as the employer’s size and whether the employer has any human resource capacity. Mr McDaid attended a number of meetings with a support person and was provided with a number of opportunities to respond before the decision to terminate was made.

Please be careful at your work functions this Christmas season and hopefully I won’t have to write another blog post on the same topic next year!

Sick leave – when does an employee need to provide a medical certificate?

When you are sick and need to take a day off work, the last thing you feel like doing is waiting in a doctor’s drop-in practice for hours to get a medical certificate for your boss. In this blog post I explain the situations when your employer can lawfully request evidence such as a medical certificate and the type of evidence which will satisfy the requirement.

 

Personal leave - basic principles

The material in this blog post is only relevant to national system employees to which the Fair Work Act 2009 (Fair Work Act) applies. The term used for sick leave in the Fair Work Act is “personal leave”. A full time employee is entitled to 10 days of paid personal/carer’s leave for each year of service (s.96 Fair Work Act). Personal leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year. Part time employees have the same pro rata entitlement. Employers cannot contravene a National Employment Standard and are subject to the Fair Work Act’s civil penalty regime if a contravention does occur (s.44). Accrued personal leave will not be cashed out unless an award or enterprise agreement applying to the employee permits cashing out (s.100).

 

A modern award or enterprise agreement cannot exclude a National Employment Standard such as the entitlement to personal leave in s.96 of the Fair Work Act. However, modern awards and enterprise agreements may contain certain additional clauses relating to personal leave including terms relating to the kind of evidence an employee must provide to be entitled to paid personal leave (s.107(5)). An employee to whom a modern award or enterprise agreement applies must therefore check the provisions of the relevant instrument to see whether more detailed evidence requirements apply than the basic requirements contained in s.107. 

 

Evidentiary requirements

Section 107 of the Fair Work Act provides the notice and evidence requirements for personal leave. After the employee provides notice of the personal leave to the employer, the employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken “because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee” (s.107 and s.97). Two questions arise:

1.                  When can an employer request evidence?

2.                  What type of evidence would satisfy a reasonable person?

 

When can an employer request evidence?

The words used in s.107 are “must, if required by the employer”. This appears to provide employers with broad power to request medical evidence. However, employers should consider whether requiring the medical evidence is reasonable. Situations where it would be reasonable to request medical evidence include where there is an extended absence, a particular pattern of absence, or the employer otherwise reasonably suspects the employee does not satisfy the requirements to take personal leave. Where the employer makes a request for the evidence, the evidence must be provided within a reasonable timeframe. A reasonable timeframe could be during the personal leave (if the personal leave is occurring over a long period of time), or after the personal leave has finished (if the personal leave is for a short period of time).

 

What type of evidence would satisfy a reasonable person?

A reasonable person would be satisfied by medical evidence such as a medical certificate. Personal leave may be taken where the employee “is not fit to work because of a personal illness, or personal injury, affecting the employee” (s.97). Note the “not fit to work” requirement. Having an illness or injury alone is not sufficient to take personal leave. Where a medical certificate is not obtained and an employer subsequently requests evidence, the employee may be able to submit a statutory declaration as evidence that would satisfy a reasonable person. However, a statutory declaration may not suffice where a modern award or enterprise agreement has more specific evidence requirements. A good example is the Telstra Enterprise Agreement 2015-2018.

 

Clause 32.2(a) provides that “medical evidence” must be provided to an employee’s manager if personal leave is more than 3 consecutive work days or if more than 5 personal leave days have already been taken during the leave year without providing evidence. A statutory declaration is unlikely to fall within the concept of “medical evidence”, especially when contrasted to clause 32.2(b) which expressly permits a statutory declaration be provided where the employer has requested evidence after forming a reasonable suspicion the employee is not entitled to the personal leave.

Modern awards and enterprise agreements may contain more specific provisions relating to personal leave evidentiary requirements.

Modern awards and enterprise agreements may contain more specific provisions relating to personal leave evidentiary requirements. It is therefore important to understand whether you are covered by a modern award or enterprise agreement. You should be able to find this information in your employment contract or letter of offer. If in doubt, you should talk to your employer’s human resources contact or call the Fair Work Ombudsman for advice.

Enterprise agreements often contain specific provisions relating to personal leave evidentiary requirements. In contrast, modern awards generally refer to the personal/carer’s leave in the National Employment Standards and do not provide additional evidentiary requirements for personal leave. For example, the Banking, Finance and Insurance Award 2010 provides “Personal/carer’s leave and compassionate leave are provided for in the NES”. Some modern awards provide for unpaid personal leave for casuals, such as the General Retail Industry Award 2010:

33.1 Personal/carer’s leave and compassionate leave are provided for in the NES.

33.2 Casual employees are entitled to be not available for work or to leave work to care for a person who is sick and requires care and support or who requires care due to an emergency.

33.3 Such leave is unpaid. A maximum of 48 hours absence is allowed by right with additional absence by agreement.

Case law on the evidentiary requirements of s.107 is limited:

1.      Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32

This adverse action case concerned a pilot First Officer Greg Kiernan who took extended sick leave due to clinical depression. Mr Kiernan produced medical certificates, but Qantas requested a more detailed report that outlined his fitness to work in his role as a pilot and the expected timeframe to resume normal duties. Mr Kiernan argued he had satisfied this evidentiary requirement by providing the medical certificates and was not required to produce a more detailed report. The key provisions of the certified agreement were:

 

“31.3.7 Notifying the Company of illness

A flight crew member is required to notify the Company immediately upon becoming ill and will, as far as possible, state the nature of the illness and the estimated duration of absence.
...

31.3.10 When a medical certificate is required

(d) Before being required to produce a medical certificate or other evidence of unfitness for duty, a flight crew member is entitled to a maximum of four occasions or seven days of sick leave commencing from 20 August in each year. However, if a flight crew member reports sick on the same day that he or she is contacted for duty or on the following day, the Company may require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.

(e) Any patterns affected by non-certificated sick leave will be unpaid other than as provided in 31.3.10(a).” (emphasis added)

 

Justice Rares held that the provisions in the certified agreement were not exhaustive of the contractual rights between Qantas and its employees in respect of when or why Qantas could require an employee to undergo a medical examination or provide further information about the employee’s medical condition. Justice Rares implied a term into the employment contract that Qantas may require medical evidence of the kind sought from Mr Kiernan, and require Mr Kiernan to attend a meeting to discuss matters arising from the certified agreement and the Work Health and Safety Act. The implied term is necessary to enable the employer to make its own business arrangements and to adjust for the impact caused by the sickness. Unless there is an express term to the contrary, ordinarily in a contract of employment, each party agrees to do all such things as are necessary on their part to enable the other party to have the benefit of the contract.

While this case did not directly concern the interpretation of the evidentiary provisions in s.107 of the Fair Work Act, it is a good example of the many layers of law that can influence when an employer can request medical evidence.

 

2.      Maritime Union of Australia v DP World Sydney Limited [2014] FWC 2682

This case involved an employee who provided a backdated medical certificate as evidence of an illness. The employee was covered by the DP World Sydney Enterprise Agreement 2011 which included both a personal leave clause (cl.16) and an absence management clause (Appendix 1). The absence management clause provided:

DP World understands that from time to time, Employees are unable to attend work due to illness or injury. In these circumstances, Employees have the right to access their sick leave entitlement provided for under the Agreement provided this is for genuine illness. Employees should be aware however of the impact unplanned absences have on the business and the Company's ability to properly service its customers. For these reasons and to ensure sick leave is used for genuine illness or injury the Company requires Employees to provide the following evidence to substantiate their absences in any of the following circumstances:

(a) 5 days absence in the year may be uncertified;

(b) The 6th uncertified day of absence requires production of a statutory declaration;

(c) Any absence in excess of 6 uncertified days must be accompanied by a medical certificate;

(d) Sick leave absences for each day prior to or following a public holiday must be accompanied by a medical certificate;

(e) Employees who are subject to an Absence Management Plan (AMP) must provide a medical certificate for any absence:

In the cases where medical certificates must be provided as outlined, the certificates will only be accepted in the following circumstances:

(a) Prior to the day of the absence;

(b) On the day of the absence;

(c) On the next rostered shift immediately following the absence (provided certificate is not backdated).

In all these circumstances no backdated medical certificates will be accepted.” [Emphasis added]

 

Commissioner Cambridge held that a backdated medical certificate certifies illness in respect to a period before the date the medical practitioner examined the person and made the certificate. Appendix 1 of the enterprise agreement needed to be reconciled with s.107 of the Fair Work Act which provides any evidence that would satisfy a reasonable person can be provided as evidence of the personal leave. Unilaterally rejecting a backdated medical certificate that deprives an employee of their personal leave entitlements will breach s.107 of the Fair Work Act. This case highlights the risks associated with focusing solely on the provisions of an enterprise agreement in determining employee leave entitlements. Enterprise agreements must be read subject to the sections of the Fair Work Act.

 

3.      Vos Construction and Joinery Pty Ltd re Vos Construction & Joinery Pty Ltd Enterprise Agreement (Construction North) 2013-2016 [2013] FWC 4009

A proposed enterprise agreement contained a notice clause requiring more onerous notice requirements than contained in s.107 when an employee takes personal leave. Commissioner Ryan reiterated that whilst s.107(5) permits enterprise agreements to include terms relating to the kind of evidence an employee must provide to an employer there is no provision in s.107 for enterprise agreements to contain a term with more onerous notice requirements than provided for in s.107(2) of the Fair Work Act.

 

4.      Trustee for the MTGI Trust v Johnston [2016] FCAFC 140

Mr Johnston took annual leave when his wife had an emergency caesarean and his fourth child was born ten weeks premature. He later sought to transfer that leave to personal leave. This lead to his dismissal by his employer. The Full Court of the Federal Court upheld the unfair dismissal decision.

 

Conclusions

1.      Employees

·         You are only entitled to take personal leave under s.97 of the Fair Work Act where an illness or injury means you are not fit to work. Personal leave cannot be used for other reasons. If you need to care for a family member, you may be able to take carer’s leave in accordance with s.97(b) of the Fair Work Act.

·         Familiarize yourself with the evidentiary requirements of the enterprise agreement or award that covers you so you know in advance whether you will need to obtain medical evidence.

·         If you are unsure call human resources at your work and find out what their expectations are. While their expectations may or may not be the correct legal interpretation of the enterprise agreement or award, it is in your best interests to obtain the medical evidence and dispute the requirement later if you wish. You can also call the Fair Work Ombudsman for advice.

·         Keep track of days you take leave without medical evidence. This is particularly important if the enterprise agreement provides that medical evidence must be given after a certain amount of days of personal leave have been taken. Your employer must provide information about the number of days of personal leave you have taken within a reasonable time on request (see s.536 Fair Work Act and reg.3.36 Fair Work Regulations 2009).

 

2.      Employers

·         It may not be reasonable to request medical evidence for personal leave in all situations.

·         Ensure you are familiar with the personal leave provisions in any enterprise agreements or modern awards relating to your employees. In particular, the provisions in an enterprise agreement or modern award must be read in conjunction with the Fair Work Act and the contract of employment.

·         Ensure records are kept of personal leave taken by employees and respond to employee requests for personal leave records in a reasonable time frame.

 

The duty of care and personal trainers – what is the standard of care?

Personal trainers, group fitness instructors and other fitness professionals are inspiring people who help you achieve your goals. Personable, sparkly and likeable, it is easy to see your personal trainer through a halo like lens. Until something goes wrong. Clients may be surprised by the relatively limited scope of the duty of care owed by some fitness professional, especially more experienced personal trainers who are held to the ordinary standard of a reasonable personal trainer despite their higher level of experience. This blog post looks at the duty of care and standard of care required by fitness professionals. This blog post does not cover other components of negligence, contributory negligence, the provisions of the various state Civil Liability Act regimes, or the vicarious liability of a fitness professional’s employer.

Duty of care – basic principles

To successfully pursue a negligence claim, the claimant must establish:

1.    There is a duty to take reasonable care and this duty was owed at the time of the negligent act;

2.    Negligent conduct on the part of the defendant; and

3.    The claimant suffered damage as a result (that is not too remote).

This blog post focuses on the first element only, the nature of the duty of care. There are only a few cases concerning a personal trainer’s duty of care that have made it to the higher courts in Australia. Most cases settle before court. Due to the limited body of case law, the nature of the duty of care a fitness professional owes to a client in a particular context will ordinarily have to be extrapolated from first principles. Two questions need to be answered:

1.    Does the duty of care arise?

If a personal trainer is giving you advice or training you as a client, a duty of care arises. The personal trainer/client relationship is an established professional relationship in which a duty of care arises, similar to the doctor/client and financial adviser/client relationship. The gym will have a duty of care to anyone who can reasonably be expected to be on the premises, including clients and potential clients.

2.    What is the standard of care?

The standard of care is an objective measure. In the context of a fitness professional, the standard of care is that of a reasonable person in the position of the fitness professional. A personal trainer will be measured by what a reasonable personal trainer would do. Industry standards will be important in determining the standard of care and certain minimums will apply to all fitness professionals. For example, all personal trainers, regardless of the level of their qualification will be expected at a minimum to follow Fitness Australia’s guidelines including the Code of Ethics, Exercise Referral, and Pre Exercise Screening guidelines. Other guidelines may also be used by courts to identify the standard of care including the resistance training guidelines developed by the American College of Sports Medicine. In addition, where a personal trainer works at a fitness centre, any guidelines or policies developed by that fitness centre will be considered when determining the appropriate standard of care.

Does the standard of care vary depending on the personal trainer’s level of experience?

No. The standard of care is that of a reasonable personal trainer, regardless of whether the trainer has worked in the industry for one month or ten years. This principle can be extrapolated from the case of Imbree v McNeill (2008) 236 CLR 510, where the High Court had to decide whether a lesser standard was owed by a driver who is a learner driver. The High Court concluded the standard of all drivers is the same being the standard of a reasonable driver. A learner driver is not held to a lesser standard of care due to their inexperience (see [72] per Gummow, Hayne and Kiefel JJ). The main policy reason behind recognising negligence and other torts is to compensate injured plaintiffs, and a variable standard of care dependent on experience would minimise this policy objective. A personal trainer in their first week of work will be held to the same standard as a personal trainer who has 8 years of work experience. Clients who are paying more for a more experienced personal trainer will not necessarily receive a greater standard of care. Note that experience needs to be viewed separately to qualifications. For example a fitness professional with a Diploma in Sports Science will likely be held to a different standard of care to a fitness professional with a Certificate V in Fitness. 

Australian cases

1. Belna Pty Ltd v Irwin [2009] NSWCA 46

Belna Pty Ltd v Irwin [2009] NSWCA 46 concerned a woman Ms Irwin who had fallen over in a shopping center and dislocated her knee several years before seeking personal training services. Ms Irwin joined Fernwood Fitness in Parramatta where she received personal training services from Ms Bekiaris. Ms Irwin wrote on her screening form that she had fallen over in a shopping center and sustained a knee injury. Ms Bekiaris asked whether she had experienced any problems with her knee since then and Ms Irwin replied her knee was fine and she had no problems. Ms Irwin made it clear she wanted to ensure any exercises prescribed did not damage her knee.

Ms Bekiaris wrote Ms Irwin a program that included lunges. On her first attempt at the lunges Ms Irwin’s leg gave way, she fell to the floor, was taken to the hospital and was found to have dislocated her knee.

The Full Court held that it is well known a history of knee dislocation makes the knee prone to further dislocation and that requiring a person to do a lunge exercise without prior training or preparatory work exposes the knee joint to a high risk. A reasonable personal trainer having been told of a new client’s prior dislocation would have sought a proper history of the injury and made closer inquiries about the nature of the knee injury including any rehabilitation undertaken.

The case also concerned s.5M of the Civil Liability Act 2002 (NSW) which provides there is no duty of care for recreational activities where there is a risk warning. At first instance the District Court held that Ms Irwin’s personal training was not “recreational” because she did it for weight loss purposes. The Full Court held the District Court judge erred in his reasons. The personal training was “recreational”, but as Ms Irwin was not warned about the risks involved in lunging or in any other activity she undertook s.5M did not prevent a duty of care arising.

There was an exclusion clause in the Fernwood contract, but the Court of Appeal held that it was ambiguous, vague, and unintelligible such that it did not exclude Fernwood from liability.

2. David Michael Wilson v Nilepac Pty Limited trading as Vision Personal Training (Crows Nest) [2011] NSWCA 63

See also first instance decision of Justice McCallum - David Michael Wilson v Nilepac Pty Limited trading as Vision Personal Training (Crows Nest) [2009] NSWSC 1365 (10 December 2009).

Mr Wilson, a Sydney based barrister specializing in insurance, compensation and medical negligence legislation, purchased a package of cardio and weights sessions from Vision Personal Training at Crows Nest, and was allocated Mr Alex Draffin as a trainer. Four weeks into the program, Mr Wilson sustained a lower back injury (prolapsed disc). Mr Draffin was a 20 year old who had only recently completed his personal trainer qualification and only recently been employed by Vision. Mr Wilson claimed his back injury occurred during phase 2 of the program when he carried out two “dangerous” exercises – a horizontal leg press and a medicine ball catch abdominal exercise. The training session where Mr Wilson claimed the injury had been sustained occurred on the Saturday and by the Monday he had back pain. During his time training prior to the incident Mr Wilson did not complain to Vision of any back pain. Mr Wilson alleged four categories of breach of duty being the specific leg press exercise, the specific abdominal medicine ball exercise, the systems under which Mr Wilson’s training plan was established (including the allocation of Mr Draffin as his trainer), and general allegations in relation to the exercise programme delivered.

At first instance Justice McCallum found that the trainer and Vision had not breached a duty of care towards Mr Draffin. In relation to the four categories of breach of the duty of care alleged:

1. Vision systems and allocation of Mr Draffin as trainer

Mr Draffin had a Certificate III and IV in Fitness and was suitably qualified to be a personal trainer. Justice McCallum also held that Mr Draffin’s supervision, training and induction at Vision was sufficient and that it was not negligence for Vision to allocate Mr Draffin as Mr Wilson’s personal trainer. Vision’s duty of care did not extend to supervising the implementation of every programme undertaken by Mr Draffin for every client in the gym. Justice McCallum did not find any error on Vision’s part in the client’s induction programme. This finding was not at issue on appeal.

2. Exercise programme delivered

Mr Wilson made a series of allegations about the programme delivered including that the programme was unsuitable given his age and/or level of fitness, that the programme permitted or required Mr Wilson to perform exercises beyond his capacity, and that the programme did not include adequate core muscle-strengthening exercises, warm ups or rest between sets. Justice McCallum was not satisfied Mr Draffin had failed to take the precautions a reasonable personal trainer in his position would have taken. Mr Wilson appealed this finding in relation to the programming of the abdominal exercise with the medicine ball (see discussion below).

3. Horizontal leg press

The horizontal leg press was performed with a very heavy weight. Mr Wilson was not instructed on the importance of pushing the lower back/spine against the supporting pad which is important to minimize the risk to the lower spine. Justice McCallum found the posture issue was caused by Mr Wilson’s height and the structure of the leg press machine rather than Mr Draffin’s instructions. Mr Wilson also complained the intensity of the leg press exercise was excessive as he had been increasing in increments and was lifting 200 pounds on the day the injury allegedly occurred. Justice McCallum was not satisfied a reasonable personal trainer would have known to stop at 190 pounds and not progress to 200 pounds and it is only hindsight that makes it appear unreasonable. Intensity is a matter of perception and although Mr Draffin selected the weights for Mr Wilson’s sessions, Mr Draffin often asked whether Mr Wilson was ok with the weights. The findings regarding the horizontal leg press were not at issue on appeal.

4. Abdominal exercise with medicine ball

The evidence on the nature of the abdominal exercise with the medicine ball was conflicting. At first instance, Justice McCallum decided Mr Wilson performed medicine ball crunches with side twists at the top of the crunch, not medicine ball sit ups. The differentiation between a crunch and a sit up was important as a sit up was considered by the expert to be an advanced abdominal move not suitable for a person of Mr Wilson’s experience. The medicine ball weighed 5.4kg. Mr Wilson argued that the exercise was inappropriate due to the use of a medicine ball and the twisting motion. Mr Draffin had learned this exercise in his course and it was commonly used by other trainers at Vision. Justice McCallum found a reasonable personal trainer would have taken the risk of prescribing the medicine ball twist exercise. The exercise was tried once, Mr Wilson was unable to do it, so Mr Draffin regressed Mr Wilson back to crunches.

Mr Wilson submitted that the standard of care owed to him was higher than that owed at a normal gym as he had paid more money to train at Vision. Justice McCallum rejected this submission, identifying the standard of care as that of a reasonable personal trainer and a reasonable personal training studio. The fact Mr Draffin was a very junior personal trainer did not lower or otherwise affect the duty of care owed. While Justice McCallum held the abdominal medicine ball exercise most likely caused the injury, her Honour found no breach of the duty of care.

Mr Wilson appealed the findings relating to the medicine ball abdominal exercise to the NSW Court of Appeal. Mr Wilson argued that the expert evidence of exercise physiologist Mr Chris Tzarimus in relation to the use of medicine ball and side to side movements in the crunch exercise should have been accepted and that a reasonably competent professional fitness trainer in the position of Mr Draffin would not have prescribed the exercise. 

The Court of Appeal held that the evidence of Mr Tzarimus regarding the appropriateness of the medicine ball exercise should have been considered and overruled Justice McCallum’s findings in relation to duty of care, finding Mr Draffin had breached a duty of care to his client in relation to prescribing the abdominal medicine ball exercise.

Tobias JA (with whom Beazley JA agreed) found a reasonable personal trainer would not have prescribed the medicine ball exercise. A reasonable personal trainer would have desisted from prescribing the exercise until satisfied that the client is sufficiently advanced in terms of abdominal strength to have the capacity to undertake the exercise without risk of harm to the spine.

Whealy JA agreed with the other Court of Appeal judges, finding that a reasonable personal trainer should have realized “more care should have been taken, and caution exercised, in acclimatizing the appellant to the basic medicine ball exercise before considering whether additions should be made to it. There is no doubt, as the primary judge found, the medicine ball exercise, with its variations, was the cause of the injury”.

3. Fitness First Australia Pty Ltd v Vittenberg [2005] NSWCA 376

In the course of a circuit class at Fitness First Bond Street in Sydney, Ms Vittenberg severely injured her leg when using a seated leg curl machine incorrectly.

A trainer at Fitness First was taking a circuit style class in which Vittenberg was participating. There were 30-35 people in attendance. At the start of the class the trainer asked whether anybody was suffering any injuries and whether anyone was new. This was Ms Vittenberg’s first circuit class at Fitness First but she did not respond to the trainer’s prompt as she had completed circuit classes at previous gyms. Ms Vittenberg was an experienced gymgoer and had used a number of machines before including a leg extension machine. At the time of Ms Vittenberg’s injury in February 2001, the seated leg curl machine was a recent development, not commonly found in gyms, and had a similar appearance to the leg extension machine. Ms Vittenberg believed the machine to be a leg extension machine, proceeded to use seated leg curl machine incorrectly and severely injured her leg. 

At first instance, the District Court held the trainer taking the class and Fitness First had acted negligently in failing to provide adequate instruction in using the machine and failing to provide adequate supervision in using the machine. Fitness First appealed, submitting that the group fitness trainer had acted reasonably by asking participants at the start of class whether they have any injuries, thereby allowing participants to come forward for individual instruction if required. Fitness First also submitted it had sufficiently warned of the risk as the seated leg curl machine included a diagram showing the correct usage. The District Court judge held that the diagram was not sufficient to provide instruction on use of the machine, especially in the context of the purpose of the class which was for participants to work hard and move rapidly from machine to machine. The Court of Appeal agreed with this analysis that in the context of the class, the sign was insufficient to mitigate the risk.

In regards to the duty of care owed by a registered fitness leader or group fitness instructor, the Court of Appeal held the fitness instructor’s general inquiry was not sufficient and that a reasonable fitness instructor in the context will have made a more specific inquiry of participants as to whether any member of the class was not familiar with the circuit machines in the gym, which would then invite explanation and demonstration. This question should be asked and demonstrations undertaken even if it meant a delay to the class.

Key message for clients

Tell your trainer everything about your injury and tell the truth and the whole truth in the pre-exercise screening process. Even if your injury occurred two or three years ago and you consider yourself completely recovered, mention the injury and any rehabilitation undertaken and make sure your trainer has written your response down on the pre-screening form. This may be an important piece of evidence later if required. The disclosure of this information may require you to obtain clearance from your GP or an allied health professional but is worth the delay to ensure safe training.

When your trainer asks you how you are feeling on a particular day be honest and tell them about that niggling hamstring pain. While a reasonable personal trainer will make inquiries as to injuries prior to training, a reasonable person trainer will not be expected to know about injuries they had no indication existed. Communication with your personal trainer will help keep you safe and help ensure injuries do not happen in the first place.

Paying more for an experienced personal trainer will not increase the trainer’s standard of care. In the law of negligence experienced personal trainers will be held to the standard of a reasonable personal trainer, not the highest ability level of the particularly experienced trainer.

Key message for fitness professionals

Personal trainers should be aware of the standard of care they are held to - that of a reasonable personal trainer. This is only a minimum standard and for the sake of the industry, personal trainers should aim to perform above this level. Junior personal trainers should be aware that the standard of care does not take into account their low level of experience. Junior trainers should ensure they are part of an induction and ongoing educational program, should receive supervision and be part of an ongoing training program. While supervision is important, the supervision does not require every program written by the junior trainer to be reviewed by their supervisor or employer. The pre-screening process needs to be taken very seriously. Any mention of injury should be followed up by a series of further questions. Personal trainers should take out third party insurance in the case of a negligence claim.

Group fitness instructors should be aware that asking a general question as to injuries may not be sufficient to discharge their duty of care. Group fitness instructors should consider the exact equipment to be used in the class, specifically ask if anyone has not used the equipment and provide an explanation and demonstration on correct use of that equipment where prompted by a response. Even if the class is equipment free and only bodyweight is used, a reasonable group fitness instructor should ask if participants are familiar with the moves and if not provide instruction and demonstration. This is the standard courts have held a reasonable group fitness instructor to. Group fitness instructors should also obtain third party insurance.