The Australian Nursing and Midwifery Federation and Eastern Health have a s.739 (Application to deal with a dispute) on foot before Commissioner Cribb in the Fair Work Commission 11 Exhibition Street in Melbourne.
June 21, 2017
Disgraced former unionist Kathy Jackson is now facing more than 160 criminal theft and fraud charges for allegedly misappropriating hundreds of thousands of dollars from the Health Services Union. Ms Jackson, who has a property in Wombarra, appeared on Monday morning in the Melbourne Magistrates Court, where she faces the prospect of criminal convictions and a jail sentence if she is found guilty. Police allege Ms Jackson misrepresented more than $500,000 of personal expenses as union expenses while she was the HSU secretary. All 164 police charges relate to 70 allegations that were laid against her by detectives from Taskforce Heracles last year. Racked up on her multiple union-issued credit cards, her allegedly illegal expenses include hundreds of thousands of dollars on an airfares and luxury hotel accommodation while Ms Jackson was on multiple overseas vacations in cities such as New York, Las Vegas and Hong Kong. Other allegedly illegal expenses were at a gym equipment store, electronics retailer JB Hi-Fi, and a high-end auction house. The criminal case follows the conclusion of long-running civil action in the Federal Court of Australia, in which Ms Jackson was ordered to pay back about $1.4 million of union funds she used to bankroll her often-lavish lifestyle. Ms Jackson was once hailed as a whistleblower on corruption within the HSU, and shot to national prominence for exposing corrupt practices of former national president Michael Williamson, now in jail, and former federal MP Craig Thomson. Appearing in court on Monday, Ms Jackson was accompanied by her partner, former Fair Work Commission deputy president Michael Lawler. Some of the newly filed charges are fresh offences, while others are alternatives in case more serious charges fail. The case will return to court on August 4. Ms Jackson, who lives in New South Wales, has been excused from appearing. The court heard that prosecutors intended to call a range of witnesses, including officials from the Peter MacCallum Cancer Hospital. In its damning judgment in 2015, the Federal Court found Ms Jackson had misappropriated $250,000 of union members’ money from a financial settlement with the hospital. Ms Jackson’s lawyer, Philip Beazley, on Monday morning applied to have her bail conditions varied to allow him to contact witnesses. The application was granted by Magistrate Charlie Rozencwajg.
June 21, 2017
United Voice and Mercy Aged & Community Care ltd have a s.739 (Application to deal with a dispute) due to be adjudicated by Deputy President Kovacic in his ACT chambers at 9am.
June 21, 2017
The Royal Flying Doctor Service (South Eastern Section) has had the Royal Flying Doctor Service of Australia (South Eastern Section) Medical Practitioners Enterprise Agreement 2017 adjusted by Commissioner Lee in Melbourne on 19 June 2017. The original nominal expiry date of 14 June 2017 was incorrect and is amended to 14 June 2021.
June 21, 2017
A Southland health worker who punched and strangled their partner has been sentenced to supervision. The person, whose identity and occupation is suppressed, appeared before Judge John Brandts-Giesen in the Invercargill District Court on Monday. The person had earlier admitted a charge of assault and applied for a discharge without conviction, but the judge declined, instead sentencing them to 12 months’ supervision. Judge Brandts-Giesen said the person had been drinking with their partner on February 28 when the couple began arguing. “I suspect you were drunk,” the judge said. When the partner was in bed, the person stood over them and punched their partner in the face, causing a bleeding nose and lip. They then grabbed their partner by the shirt and pounamu necklace, which caused them to struggle to breathe for a short time. The partner managed to get away, and went to a neighbour’s house to phone police, the judge said.
June 21, 2017
TERMINATION OF EMPLOYMENT – misconduct – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant commenced employment as machine operator on 2 July 2014 – summarily dismissed on 13 December 2016 following allegations of theft – on 9 December 2016, managing director of respondent company, Mr Tang, was advised by applicant’s estranged former wife, Ms Chen, that applicant stole manufactured products from time to time – Mr Tang asked respondent’s production manager, Mr Ping, to contact applicant on 12 December 2016 to invite applicant to respond to allegations and to terminate employment – respondent contended it had sufficient evidence to dismiss applicant as the pills alleged to have been stolen were ‘unfinished and would not have been able to be obtained in the general market’ – Ms Chen gave evidence that she reported applicant’s alleged misconduct to respondent because she was ‘law abiding citizen’ – further explained she waited nine months to turn him in because she had hoped to reconcile relationship – applicant gave evidence that conversation with Mr Ping on 12 December 2016 was to effect that respondent received ‘tip off’ of misconduct and that he was to be dismissed – did not know who informed respondent of theft nor what he was accused of stealing until 17 March 2017, after reading respondent’s F3 – further gave evidence that he and his former wife had small business buying vitamin supplements and selling them to friends in China – documents were subsequently submitted to Commission to support this contention – Commission considered whether there was valid reason to dismiss applicant – Edwards v Giudice considered: ‘When the reason for a termination is based on the misconduct of the employee, the Commission must, if it is an issue in proceedings challenging the termination, determine whether the conduct occurred’ – King v Freshmore considered: ‘The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved’ – Commission held that Ms Chen’s evidence was implausible and tainted with mala fide intent and therefore, unreliable – that respondent failed onus of proving applicant’s misconduct given Ms Chen’s mala fide intent and its ‘gigantic leap to unlikely conclusions’ – that applicant was witness of truth whose evidence that he had never stolen from respondent was to be believed – Commission satisfied there was no valid reason for applicant’s dismissal – there was gross denial of natural justice towards applicant as he was not advised of circumstances of alleged misconduct nor given opportunity to respond – respondent did not provide any evidence of effect of any order of compensation on its viability – application granted – reinstatement not appropriate – Commission ordered compensation of $14,592.00 gross plus 9.5% superannuation less applicable taxation. Ji v Ferngrove Pharmaceuticals P/L
June 21, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – ss.383, 384, 394 Fair Work Act 2009 – applicant applied for unfair dismissal remedies in respect of her dismissal by the respondent – respondent raised the jurisdictional objection that the applicant had not met the minimum employment period of six months on the basis that her employment was casual and not systematic – in this regard, the respondent argued that the applicant was one of 30 casual employees in a typist pool who performed ‘overflow’ work from home, and the applicant’s work was self-allocated with no minimum work requirement – significantly the applicant’s contract purported to be a contract for casual employment – the Commission observed that it is the engagement, not the hours, that must be regular and systematic [Yaraka] – held that the absence of any contractual requirement for the applicant to work set hours did not preclude the finding that her engagement was regular and systematic – found that the applicant’s engagement was long-standing and that the respondent relied on the applicant’s service in an ongoing manner – held that the applicant’s employment was regular and systematic – the jurisdictional objection was dismissed. Morrow v MedHealth
June 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute concerned St John of God Pathology Victoria – Health Services Union – Caregiver Enterprise Agreement 2015 (Agreement) – applicant sought that the Commission make three determinations in the matter – Commission considered jurisdiction to make draft determinations sought – draft determination one sought a finding that respondent failed to consult – draft determination two sought a finding that there was an obligation on the respondent to undertake consultation within a specified period or that in any event, the respondent did not undertake consultation within the period sought by the applicant – the complaints in draft determinations one and two could not be made out – draft determination three invites a finding that employees were entitled to severance payments pursuant to clause 33(g) of the Agreement – 33(j) of the Agreement states that severance payments are not ‘payable in the event of a transmission of business where comparable alternative employment is offered and accepted’ – this required resolution of whether there was a transmission of business, whether the respondent ‘obtained’ the new employment, and whether that employment was ‘comparable alternative employment’ – Commission held nothing in Agreement suggested ‘transfer of business’ had a meaning other than the ordinary meaning – meaning in Schedule B attributed – comparable employment was offered and accepted – whether employment is ‘acceptable alternative employment’ is an objective test – identical employment need not be found and comparability does not rest on there being no detriment to an employee – there were some differences in the new employment offered – these matters do not displace the proposition that the alternative employment is comparable – while not identical, the new employment had features of broad and sufficient comparison with the former employment having regard to the nature of work to be performed, the payment received, the skills used and the hours worked – application dismissed. Health Services Union v St John of God Health Care
