MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – heard and determined six substantive claims in dispute under Pharmacy Industry Award 2010 – directions issued to file material in relation to claims 1-4 (minimum shift and provisions relating to employment of school students, grades at which junior rates should apply, payment of overtime to casual employees, coverage of annualised salary rate) – Shop, Distributive and Allied Employees Association (SDA) filed a series of draft determinations on behalf of interested parties – accordingly claims not disputed between parties – Pharmacy Guild of Australia advised Commission it did not intend to press its application relating to claim six (annual close down) – claim five (shift length and terms of engagement) listed for hearing – SDA claimed inserting two provisions relating to full-time employees were uncontroversial and self-evident – supporting evidence not submitted – Commission considered implementation of the provisions not self-evident – provisions related to casual and parttime employees distinguished from fulltime employees – SDA’s application for variation dismissed – other variations sought by interested parties by consent were agreed to, straightforward, uncontroversial and appropriate – variations sought were necessary to achieve the modern awards objective – variations given effect on 7 August 2017. 4 yearly review of modern awards – Pharmacy Industry Award 2010
July 14, 2017
CASE PROCEDURES – procedural and interim decisions – s.789FC Fair Work Act 2009 – application for order to stop bullying – applicant employed pursuant to fixed-term contract as Senior Research Fellow of Asia Pacific Centre for Neuromodulation (Centre) – the Centre part of The Queensland Brain Institute at The University of Queensland (University) – commenced role on 11 March 2013 until termination of contract on 10 March 2017 – on 19 January 2017, contract renewed until 31 December 2017 – in 2015, anonymous complaint alleged applicant engaged in research misconduct – University had Research Misconduct Policy setting out principles for managing complaints of research misconduct which required it to undertake preliminary investigation if there is prima facie case that research misconduct existed – ‘Designated Person’ tasked with undertaking inquiries may recommend establishment of internal inquiry panel – Dr Susan O’Brien, Manager of the Office of Research Integrity at the University, was Designated Person with carriage of complaint made against applicant and also the ‘named person’ in application – University established inquiry panel involving Professor Koopman, Professor Hodges and Dr Kamke – on 16 March 2017, inquiry panel provided applicant draft report of its findings which were largely adverse to him – following applicant’s response, inquiry panel issued further draft report dated 26 May 2017 to 30 May 2017 and invited applicant to respond by 14 June 2017 – application made on 2 June 2017 and applicant sought expedition of application – following hearing before Hampton C on 9 June 2017, University agreed that applicant not be required to provide written response until 20 June 2017 – matter listed for urgent hearing before Commission on 15 June 2017 to determine whether interim orders be issued – parties reached agreement to deal with interim issues and no interim orders made – applicant discovered that his contract would not be renewed after 31 December 2017 and sought re-listing of matter – parties agreed at hearing on 30 June to compress timetable to complete inquiry into alleged research misconduct – University submitted it wished to make formal offer to Dr X to accept employment from 1 January 2018 – applicant pressed Commission to make order to prevent University from offering role to any person until substantive application before Commission determined – Commission held that applicant’s rights relevant to substantive application not adversely affected by decision of University to offer new role commencing 1 January 2018 to new person – declined to make interim order sought – University at liberty offer Dr X the role commencing 1 January 2018 – Commission directed University to provide undertaking to commit to timetabling of completing inquiry by 4.00pm 11 July 2017. Dr Subramanian
July 14, 2017
TERMINATION OF EMPLOYMENT – contractor or employee – ss.382, 394 Fair Work Act 2009 – application for unfair dismissal remedy – the applicant worked as a physiotherapist at the respondent’s practice for about 2.5 years – respondent raised a jurisdictional objection, arguing that the applicant was an independent contractor and not an employee – having regard to the indicia of control [Hollis], [Cai] the Commission observed that the respondent did not directly supervise the applicant’s work, and that the applicant and respondent ‘passed like two ships in the night’ with each using the physio room at different times – the applicant was found to have provided services in the name of the respondent’s practice, which was more consistent with an employment relationship – on balance, it was held that, without detracting from the range of competing indicia, the applicant was working within the business environment established by the respondent and the services were provided as part of the business of the respondent – this included that it was the respondent that had the right to make important business decisions – the respondent was found to be able to set and change the context in which the applicant’s services were provided – the respondent took the risks associated with the payment for the provision of those services – the applicant was found to be an employee of the respondent – it was held that the Commission had jurisdiction to hear the application – substantive matter to be heard. Mitchell v Uraidla Physio
July 14, 2017
CASE PROCEDURES – stay order – ss.394, 604, 606 Fair Work Act 2009 – appeal – at first instance Commission determined that employee was unfairly dismissed and ordered compensation of $14,592.00 gross plus 9.5% superannuation to be paid within 21 days – appellant sought permission to appeal decision and sought a stay of the whole of the order – in deciding whether to exercise its discretion to grant a stay order, Commission must first be satisfied that appellant has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and substantive merits of appeal – balance of convenience must weigh in favour of order subject to appeal being stayed [Kellow-Falkiner Motors] – appellant listed multiple grounds of appeal – common theme that decision of Commission involved significant errors of fact – appellant also sought to lead fresh evidence at appeal – purpose of examining grounds of appeal is to consider whether they disclose an arguable case of error, with some reasonable prospect of success on appeal – Commission not persuaded that appellant made an arguable case with some reasonable prospect of success – not persuaded that alleged errors listed in grounds of appeal could be described as significant – considered alleged misapprehension of appellant witness evidence regarding availability of certain products in chemists a matter of potential significance – noted that access to justice should be afforded to entire community and to the extent that a problem of translation resulted in an alleged error of fact it must be significant – not satisfied that appellant had made out an arguable case, with some reasonable prospects of success as to the merits of an appeal or as to permission to appeal – application for stay dismissed. Appeal by Ferngrove Pharmaceuticals P/L against decision of Sams DP of 8 June 2017 [[2017] FWC 2999] Re: Ji
July 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – interim order – ss.84, 589, 739 Fair Work Act 2009 – respondent proposed to make applicant redundant – applicant applied to Commission to deal with a dispute in relation to consultation under Mission Australia Service Delivery Enterprise Agreement 2016-17 (Enterprise Agreement) – applicant claimed respondent failed to comply with consultation obligation to consider measures to avoid or minimise terminations under Enterprise Agreement – applicant lodged application two days prior to proposed termination – Commission twice invited respondent to delay termination until matter could be listed for further conciliation – respondent rejected invitation – Commission granted interim order – applicant was on parental leave when notified of proposed redundancy – applicant requested redeployment period be delayed until return to work from parental leave – respondent advised applicant that permanent employees on parental leave were required to participate in current redeployment process – applicant submitted that postponement of redeployment until return from parental lease was measure to avoid or minimise risk of termination – whether serious question to be tried – respondent submitted it fulfilled consultation obligations – Commission satisfied questions to be answered including whether respondent engaged in meaningful consultation, had done all it could to mitigate any adverse effects of termination and in refusing to delay consideration of redeployment whether made reasonable efforts to redeploy – applicant claimed dispute settling procedure in Enterprise Agreement requires status quo be maintained to allow further consultation – respondent submitted that when applicant made application to deal with dispute that respondent had already notified her of decision to terminate meaning the continuation of work as normal included effecting termination – Commission considered that balance of convenience lies with applicant – Commission satisfied should grant interim order as applicant’s termination could only be undone after significant litigation – urgency of application made out as termination were to occur a little over an hour after hearing commenced – application for interim order granted. Lee v Mission Australia
July 13, 2017
A man who is alleged to have sexually assaulted an elderly patient at an aged care home in the western suburbs has appeared in court for the first time — but we cannot name the facility. The Ridleyton man, 20, fronted the Port Adelaide Magistrates Court on Wednesday charged with one count of engaging in sexual intercourse without consent between March 31 and May 1 this year. The media cannot reveal the name of the aged care facility where the alleged abuse occurred because Magistrate Kym Millard imposed a suppression order which prevents it from being published. Ian White, for the facility’s owners, sought the suppression order — which was opposed by the media. Mr White said naming the facility could potentially identify the victim. “I agree (naming the facility) doesn’t identify person X specifically, but it narrows and focuses towards a small community and has the potential to identify the alleged victim,” he told the court. In opposition, the media argued naming the facility would not lead to the victim being identified because it was not a small nursing home and it may encourage any other potential victims to come forward. But Mr Millard disagreed, and made the suppression order. The accused man — whose identity is suppressed under state law — will return to the Adelaide Magistrates Court in September.
July 13, 2017
Nurses should be given more powers to discharge patients and help ease the pressure on South Australia’s overcrowded hospitals, the union says. Australian Nursing and Midwifery Federation (ANMF) state secretary Elizabeth Dabars said the State Government agreed to roll out nurse-led discharges in some areas of the health system 18 months ago. The change would mean nurses could discharge patients from hospital in certain situations, such as after minor surgeries, and according to criteria agreed upon by doctors. Ms Dabars said the practice was already happening for specific situations in some hospitals but not enough had been done to implement a broader policy change.
July 13, 2017
Uraidla Physio is still fighting a s.394 (Application for unfair dismissal remedy) application by Mitchell.
