An application by The Uniting Church in Australia Property Trust (Q) (s.120 – Application for approval of a variation of an enterprise agreement) will be heard by Commissioner Booth in his Brisbane chambers at 2pm
June 6, 2017
St John of God Health Care Inc T/A St John of God has had its St John of God Health Care – AMA – WA – Medical Practitioners Enterprise Agreement 2016 amended. Commissioner Johns in Melbourne on 1 June 2017 included the Australian Salaried Medical Officers’ Federation as a bargaining representative for the Agreement.
June 6, 2017
The federal Health Department has imposed sanctions on a national aged care provider after an audit of its Darwin facility revealed “immediate and severe” risks to residents. Regis Healthcare operates 54 aged care facilities around Australia, including Regis Tiwi, which is home to about 130 residents in the northern suburbs of Darwin.
June 6, 2017
A s.365 (General protections) application by Paul Wakelam against Uniting Agewell Victoria T/A Uniting Aged Care has succeeded. Despite being late filing his paperwork, Deputy President Gooley in Melbourne on 31 May 2017 decided to keep his unfair dismissal claim alive.
June 6, 2017
A former Federation Training administration worker has attacked the current state of the TAFE’s Fulham campus. Federation Training had continued to advertise health and aged care courses, but Ms Howard said locals would miss out on opportunities in Sale. She said a senior Federation Training employee had recently spoken publicly about how the health sector was growing, and face-to-face classes were being offered. “[He was] spruiking the redevelopment of the Traralgon hospital, the Bairnsdale hospital, the Warragul hospital; he didn’t mention anything about Sale hospital, nor, which really shocked me and made me think how much he is communicating with businesses in Wellington Shire, [is] that there’s a brand new nursing home which has just advertised 160 jobs,” she said. “Where are they going to get their skilled workforce from? “He didn’t even make mention of the aged care sector in this area aged care workers, hospitality like cooks and cleaners, nurses, rehab why is Sale neglected?”
June 2, 2017
TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – application for relief from unfair dismissal dismissed at first instance – Commission found dismissal was not harsh, unjust or unreasonable – appellant sought permission to appeal – Coal & Allied and GlaxoSmithKline applied – Full Bench discovered parties consented to have matter dealt with on the papers but involved contested facts – respondent also submitted due to security concerns associated with the appellant’s conduct the Commission was not required to hold a hearing or a conference – Full Bench found as the matter involved disputed facts the Commission had a statutory obligation to conduct a conference or hold a hearing in relation to those contested facts – Full Bench further noted a security concern was not a basis to avoid a hearing or a conference – permission to appeal granted – Full Bench found the relevant contested facts were a critical issue in the proceedings – public interest test enlivened – appeal upheld – decision at first instance quashed – matter to be reheard. Appeal by Sekirski against decision of Gregory C of 2 March 2017 [[2017] FWC 1200] Re: Scope (Vic) Ltd
June 2, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed in May 2014 as a Receptionist/Administrator – summarily dismissed for serious misconduct on 27 November 2015 – respondent submitted reasons for dismissal were due to applicant engaging in bullying conduct against two other employees; and engaging in fraud and theft by incorrectly recording her working hours and claiming payment for those hours – applicant denied allegations and stated that all of the records had not been put before her prior to dismissal – matter heard together with application made by applicant’s mother, who was also an employee of respondent, and was dismissed for substantially similar reasons at the same time [[2017] FWC 2573] – respondent referred the basis for the dismissal, in terms of the allegations of fraud and theft, to the Queensland Police Service (QPS) – QPS conducted an investigation into allegations, however it was confirmed several months later that no charges would be laid against either applicant or her mother – whether valid reason for dismissal – Commission found allegations of bullying unsubstantiated – held respondent failed to demonstrate that it conducted sufficient investigations into bullying allegations prior to dismissal – allegations of bullying relied on by respondent did not provide a valid reason for dismissal – elements and standard of proof required to substantiate an allegation of fraud and theft at criminal law (beyond reasonable doubt), differ and are higher than test for misconduct before Commission (on the balance of probabilities) – McKerrow considered – held nature of respondent’s evidence could be described as ‘inexact proofs’ and ‘indirect references’ – whilst respondent may have satisfied evidentiary requirement that misconduct occurred, evidence not sufficiently probative to support a finding that conduct amounted to serious misconduct – respondent ultimately carried responsibility with respect to ensuring accuracy of timesheets and wages paid to employees – to substantiate an allegation of fraud and theft the conduct must be proved to be dishonest – found respondent had not satisfied that, on the balance of probabilities, applicant engaged in misconduct, committed fraud and theft, or was dishonest – inaccuracies in the recording of time and wages provided a valid reason for dismissal – while conduct could not be condoned, it had been undermined by significant procedural deficiencies on behalf of respondent – found dismissal harsh, unjust and unreasonable – not appropriate to order reinstatement – applicant had been employed on a casual basis, and secured alternative employment within a short period after dismissal – held not appropriate in the circumstances to order compensation. Webb v The Trustee for SWC Unit Trust t/a Salisbury Day Surgery
June 2, 2017
ENTERPRISE AGREEMENTS – ambiguity or uncertainty – ss.217, 604 Fair Work Act 2009 – appeal – Full Bench – decision on appeal concerned application by appellant to vary an enterprise agreement to remove ambiguity and/or uncertainty – appellant alleged coverage clause ambiguous – submitted enterprise agreement should be varied to specify covered employees ’employed in Tasmania’ – Commission ordered variation to coverage in enterprise agreement operating prospectively – appeal focused on decision to vary enterprise agreement with prospective rather than retrospective effect – grounds for appeal included that the Commission erred in failing to consider application that variation operate retrospectively and made a jurisdictional error, and that the Commission failed to give any reasons why variation operated prospectively and take into account that common intention of parties was agreement limited to Tasmania – Health Services Union and Australian Nursing and Midwifery Federation made no submissions – Full Bench satisfied that appellant was not given an opportunity to make submissions about the prospective operation of the order – found denial of procedural fairness and appealable error – Full Bench held that an ambiguity existed in enterprise agreement and appropriate to exercise discretion to remove ambiguity – found objective intention of parties from commencement of agreement was to cover employees in Tasmania – Full Bench found that variation should operate retrospectively – permission to appeal granted – appeal upheld – decision at first instance quashed. Appeal by Aged Care Services Australia Group P/L against decision of Wells DP of 2 March 2017 [[2017] FWCA 1201] Re: Health Services Union and Anor
