A s.185 (Enterprise agreement) application by TasIVF Pty Ltd for its TasIVF Laboratory Staff Enterprise Agreement 2016 has been approved by Fair Work Commissioner Johns. The Health Services Union is the bargaining representative for the Agreement.
May 22, 2017
Tasmania’s hospital system has “decayed” over the last year, according to the state’s leading medical body. The Tasmanian branch of the Australian Medical Association (AMA) says it now has “no confidence” in the way Tasmania’s health system is being been managed. AMA president Stuart Day said the Tasmanian Health Service (THS) boss Dr David Alcorn has not delivered what is needed. “We believe that the CEO doesn’t have the skill set or the ability to implement the vision,” he said. “There has been a dismantling of the past internal structures, without something being put in that place that is functional.” Dr Day said the failures had safety implications.
May 22, 2017
TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – applicant lodged application for unfair dismissal remedy in September 2016 (unfair dismissal application) – discontinued application in January 2017, six days before matter was listed to be heard – respondent made application for costs February 2017 – sought $10,332.00 costs on an indemnity basis – respondent submitted unfair dismissal application had no reasonable prospects of success because the Commission did not have jurisdiction to determine merits of application – claimed application was made outside the 21-day time limit; that applicant was not dismissed; and that applicant was prevented from bringing unfair dismissal application by reason of settlement agreement – further submitted unfair dismissal application was made vexatiously and/or without reasonable cause and ‘hopeless and bound to fail’ – claimed by reason of applicant’s unreasonable conduct, it had incurred costs in defending unfair dismissal application – applicant claimed he was forced to resign from his employment on 28 July 2016 and was in hospital from 2 August 2016 – conceded unfair dismissal application was made out of time but provided medical certificates confirming he was suffering from depression between November 2015 and January 2017 – claimed he had been falsely accused of bullying – alleged he did not have capacity to enter into settlement agreement – Commission found nothing in the evidence presented supported a finding of the application being made vexatiously – due to application being discontinued, Commission unable to determine if unfair dismissal application had a reasonable prospect of success – would have been open to the Commission to be satisfied there were exceptional circumstances warranting applicant being granted an extension of time – Commission found applicant’s claim of constructive dismissal not without merit – not satisfied applicant unreasonably continued with unfair dismissal application until it was discontinued – not satisfied it should have been reasonably apparently to applicant that his application had no reasonable prospect of success – not satisfied it was unreasonable for applicant to instigate proceedings – no jurisdiction to order costs – application for costs dismissed. Portelli v Baxter Healthcare P/L t/a Baxter Healthcare
May 22, 2017
GENERAL PROTECTIONS – costs – ss.365, 375B, 611 Fair Work Act 2009 – Mr Cadd made application under s.365 FW Act in August 2016, which was resolved by way of settlement – application under s.365 filed again on 8 March 2017 – respondent first notified of application on 14 March 2017 – application discontinued on 22 March 2017 – application for costs order under s.375B filed by respondent on 27 March 2017 – Commission noted costs application only related to costs incurred between 14 March 2017 and 22 March 2017 – respondent submitted it intended to seek costs under s.611 as well but the box on Form F6 was not marked – as s.611 application for costs made outside 14 days after Commission finished dealing with matter, unable to be considered – respondent submitted s.375B was broad enough to permit Commission to order costs in the present matter – interpretation of s.375B and Explanatory Memorandum – held costs provisions of the FW Act clearly draw a distinction between actions which involve starting a matter and actions which involve the conduct of a matter or the continuation of a matter – held s.375B had narrow operation and Parliament did not intend it would apply to costs incurred by respondent solely arising from application being filed under s.365 or s.372 – noted applicant’s conduct in lodging application in present matter was conduct that would have led to costs order being made against him under s.611 as it should have been reasonably apparent that application had no prospect of success – Commission noted the only conduct of applicant that caused respondent to incur any costs was the action of making application under s.365 – there was no other action nor any act of omission, whether reasonable or unreasonable, in connection with conduct or continuation of dispute which would cause costs to be incurred – Commission held s.375B did not permit costs order to be made where the only costs incurred were in responding to the initial application – application for costs dismissed. Cadd v Millennium Cleaning (Vic) P/L
May 22, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 384, 394 Fair Work Act 2009 – applicant employed as support worker for people with mental health issues on basis of personal experience with mental illness – applicant made unfair dismissal application – respondent raised jurisdictional objection that applicant had not completed six month minimum employment period – submitted applicant was absent for a total of 160 days comprising of periods of unauthorised and unpaid leave – further submitted absences were excluded from calculating service for purpose of minimum employment period – applicant submitted that he was employed for over eight months – claimed that respondent was aware applicant would be absent to manage mental health – applicant claimed experience of mental health was prerequisite of employment meaning relevant absences were paid and authorised – claimed at least three weeks of absence was result of respondent’s refusal to let him return to work following hospitalisation – Commission noted that minimum employment period assessed on basis of ‘continuous service’ – found applicant’s periods of unpaid leave were excluded from period of continuous service – held that applicant’s absence on respondent’s direction was unpaid leave – Commission found that directed absence could not be considered a stand down – Commission deducted 14 weeks unpaid leave from eight and half months service – found that excluded periods of service meant applicant had not met the minimum engagement period – application dismissed. Powell v Centacare Catholic Family Services
May 22, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – casual – ss.383, 384, 394 Fair Work Act 2009 – application for an unfair dismissal remedy – applicant employed as a casual personal care assistant – respondent raised jurisdictional objection that applicant had not met the minimum employment period as she was a casual and not employed to work on a regular and systematic basis – Commission adopted the approach in Ponce that there must be sufficient evidence to establish a continuing relationship between the employer and the employee – employment must be on a regular and systematic basis which does not mean the hours or days of work must be regular and systematic – respondent submitted a table of shifts worked by the applicant – submitted the applicant had no regular shifts and the total hours worked each week significantly varied throughout the period of employment – applicant submitted she was regularly offered and accepted work – evidence provided by applicant led Commission to conclude the roster was more a statement of intention of what would occur rather than a fixed commitment by the employer to provide work – Commission concluded whilst applicant may have been offered work regularly, there was no real system to her employment and she did not expect to be offered work each week – found applicant was not employed on a regular and systematic basis – found applicant had not completed minimum employment period – jurisdictional objection upheld – application for unfair dismissal remedy dismissed. Tsakiridou v The Community of Cypriots of The Northern Suburbs of Melbourne Inc t/a Grace of Mary
May 19, 2017
Anglicare North Queensland Limited is to defend a s.739 (Application to deal with a dispute) before Commissioner Simpson in his Brisbane chambers at 11am (McEwan).
May 19, 2017
Doctors are reluctant to raise concerns about problems in the public health system, their South Australian union has warned. “The current environment in SA Health is just shutting that down, to the point where clinicians really don’t get any support in raising problems when they recognise them,” Dr David Pope of the Salaried Medical Officers Association said. He urged health managers to be made more accountable.
