Entitlement to employee designs

Thanks to the IPWars blog for reporting an Australian design entitlement case, Courier Pete Pty Ltd v Metroll Queensland Pty Ltd [2010] FCA.  The Federal Court reviewed a decision of the Deputy Registrar (reported as Collymore v Courier Pete Pty Ltd [2008] ADO 9; (2008) 79 IPR 608) on ownership of Australian designs 312217 and 312218 on rainwater tanks. 
Section 13(1)(b) of the Australian Act states that the owner is:
(b) if the designer created the design in the course of employment, or under a contract, with another person – the other person, unless the designer and the other person have agreed to the contrary...
Following Spencer Industries Pty Ltd v Collins [2003] FCA 542; (2003) 58 IPR 425, an Australian patent case which itself followed the UK case Patchett v Sterling Engineering Co Ltd  (1955) 72 RPC 50 (HC), the Federal Court held that the relevant tests were whether the employee was employed in a capacity where designing would be expected, or whether he had been specifically instructed to make the design:
"I accept the applicant’s submission that the approach of the Courts to the question whether an invention is created “in the course of employment” is to ask, “what was the employee employed to do?” If the employee was employed to make or discover inventions of the type ultimately produced, then that is work for which the employer has paid and the employer is entitled to the benefit of the invention. If the employee does not have any general duty to invent or duty of creativity, then the only basis upon which an invention can be said to have been created “in the course of employment” is if it has been created pursuant to a specific direction by the employer to undertake work which results in the creation of the invention."
In this case, Colleymore, the designer, was indeed an employee, but a factory worker who, the Court held, would not have been expected to make designs and was not instructed to make this one.  According to the judgment, "... he came up with the idea for the design for modular rainwater tanks as a result of watching one of his horses playing with a hose in the water trough on his property ... he then sketched his idea and refined it over a period of 10 days in his own time after work."  It had not been made in the course of his employment, and the design was therefore his property, not that of his employer. (Apparently neither horse nor hose made any claim to ownership).
Whilst some in-house colleagues might prefer a broader approach to the "course of employment" test, personally, I think the Court applied the right test, and one that applies as well or better to Europe's Article 14(3) RCD: where a design is developed by an employee in the execution of his duties or following the instructions given by his employer, the right to the Community design shall vest in the employer, unless otherwise agreed or specified under national law.