A s.185 (Enterprise agreement) application by Star Physiotherapy Pty Ltd T/A back in Motion Health Group – South Bank for its Back in Motion Health Group South Bank Enterprise Agreement 2017 has been granted by Commissioner Gregory in Melbourne on 9 June 2017.
June 15, 2017
An application by Forest View Childers Incorporated (s.225 – Application for termination of an enterprise agreement after its nominal expiry date) will also be determined by Fair Work Commissioner Booth.
June 15, 2017
The Roman Catholic Trust Corporation for the Diocese of Townsville is facing a s.739 (Application to deal with a dispute) before Fair Work Commissioner Booth in Conference Room A in Brisbane (Waterman).
June 15, 2017
A s.394 (Unfair dismissal) claim by Nathan Salvemini against The Trustee for the Heron Family Property Trust & Oths T/A Auscare Retirement Community has failed. Commissioner Platt in Adelaide on 9 June 2017 dismissed the claim because Salvemini failed to participate in the proceedings.
June 15, 2017
Mental health staff in the Wairarapa, Hutt Valley and Capital & Coast areas have been injured on 83 occasions by patients over the past year. A staff member was forced to take 70 days’ sick leave after being assaulted while caring for a mental health client in the lower North Island. However, authorities hope a new shift in approach by frontline staff will help drive down patient-inflicted injuries in the future.
June 14, 2017
TERMINATION OF EMPLOYMENT – minimum employment period – transfer of business – ss.383, 384, 394 Fair Work Act 2009 – application for an unfair dismissal remedy – respondent objected on the basis that the applicant was not employed for the minimum employment period – applicant employed on 7 January 2014 on a casual basis as a registered nurse at the medical practice by the previous owner – medical practice sold to respondent on 6 June 2016 – before settlement date respondent advised previous owner that employees working at the medical practice would not be recognised as transferring employees and requested that the previous owner give notice to terminate the employment of each employee – previous owner advised employees ‘We understand Dr Ismail will be providing you with an independent offer of employment commencing 6th of June 2016’ – on 6 June 2016 the applicant commenced employment with the respondent on a casual basis as a registered nurse – applicant was not provided with a written offer of employment by the respondent, nor did it inform her in writing, whether before or after the commencement of her employment with the respondent, that her period of service with the previous owner would not be recognised – no dispute that the respondent and the previous owner were not associated entities – whether there has been a transfer of business within the meaning of s.311(1) of the FW Act is whether there is a connection between the previous owner and the respondent – Commission held that in accordance with the contract for sale, the respondent became the owner, and had the beneficial use, of assets that the previous owner owned, and had beneficial use of, prior to the sale of the medical practice – satisfied that those assets related to, and were used in connection with, the work the applicant has at all material times performed in the medical practice – found that because there was a connection between the previous owner and the respondent as described in s.311(3) and the other requirements of s.311(1) have been satisfied, there was a transfer of business from the previous owner to the respondent within the meaning of s.311 and the applicant was a transferring employee in relation to that transfer of business – accordingly the applicant’s period of service with the previous owner counts as service with the respondent – Commission satisfied that the applicant’s employment as a casual employee at the medical practice was on a regular and systematic basis and she had a reasonable expectation of continuing employment – held that the applicant had completed a period of employment with the respondent of at least the minimum employment period at time of her alleged dismissal – respondent’s jurisdictional objection rejected – matter to be listed for further directions. Allan v Celesty P/L atf Celesty Family Trust t/a Toukley Family Doctor
June 14, 2017
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – decision at first instance determined dismissal unfair – appellant appealed on grounds of errors in fact and of public interest – Full Bench not satisfied that Commission erred in finding employee dismissal was harsh, unjust or unreasonable – held that Commission applied the relevant provisions of the Act in orthodox manner – not the role of appeal bench to substitute its views for those of the original decision maker – not satisfied public interest enlivened – permission to appeal refused. Appeal by Dr Allan Clarke t/a CJ Orthopaedics P/L against decision and order of Spencer C of 7 March 2017 [[2017] FWC 1335] Re: Ham
June 14, 2017
MODERN AWARDS – dispute about matter arising under award – coverage – s.739 Fair Work Act 2009 – dispute regarding modern award coverage – respondent conducts a business which provides software and software support to health professionals and medical practices – applicant performs work in call centre operated by respondent as Customer Care Agent – applicant contended that his work is covered by the Professional Employees Award 2010 (the Professionals Award) – respondent submitted that the Clerks – Private Sector Award 2010 (the Clerks Award) is applicable – applicant applied for determination from Commission – applicant submitted that he is not engaged wholly or principally in clerical work but that his skills and abilities fit under Level B.1.1 of the Professionals Award – sought reinstatement of underpaid wages since inception of the Professionals Award – respondent objected on basis that neither the Clerks nor Professionals Award authorise arbitration unless by consent by both parties – respondent also contended that the declaration being sought by applicant involves the impermissible exercise of judicial power by the Commission – Commission did not accept that the dispute by arbitration would necessarily involve the exercise of judicial power – Tenix Solutions P/L considered – could not discount possibility that applicant’s dispute could be framed in a manner so that the Commission would not be exercising judicial power in arbitration – however, as respondent did not consent to the Commission arbitrating the dispute, the Commission has no power to make a binding determination under the dispute resolution procedures of both awards – notwithstanding this issue, the Commission noted that applicant did not meet the definition of a Professional information technology employee under clause 3.3 of the Professionals Award – no evidence that the applicant’s role required a relevant degree or qualifications such that he would be eligible for admission as a member of the Australian Computer Society – noted that type of work performed by applicant is described within Level 2 or Level 3 of the Clerks Award – did not accept that Clerks Award does not properly cover applicant – application dismissed. Davidson v Health Communication Network t/a Medical Director
