A s.185 (Enterprise agreement) application by My Place (WA) Pty Ltd T/A My Place for its My Place (WA) Pty Ltd Enterprise Agreement 2016 has been approved by Commissioner Roe in Melbourne on 16 January 2017.
January 17, 2017
An application/notification by Australian Nursing and Midwifery Federation for a s.158(1) RO Act (Application for alteration of eligibility rules) will be determined by Deputy President Lawrence in the Fair Work Commission Terrace Tower 80 William Street East Sydney at 10.30am.
January 16, 2017
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged one day out of time – applicant contended she was dismissed on 6 October 2016 – respondent contended the applicant was not an employee of the respondent and was employed by an employment agency – Commission does not have jurisdiction to determine if applicant was employed by respondent or whether applicant was dismissed – granting extension requires ‘exceptional circumstances’ [Nulty] – Commission accepted reason for delay was applicant originally emailed application on 27 October 2016 in an unsupported format and was not aware the application was deemed to have not been lodged – applicant conceded no action was taken to dispute alleged dismissal – applicant contended respondent breached s.340 of FW Act but did not identify the workplace right that was allegedly breached – accepted respondent was not at any time her employer – Commission satisfied merits of applicant’s s.340 claim against respondent weak – on balance, Commission not satisfied of exceptional circumstances – application dismissed. Davie v North Queensland Primary Health Network
January 16, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant posted video with sexual overtones to Facebook and ‘tagged’ two colleagues in it – left blobs of sorbolene cream on one colleague’s desk – employment terminated due to serious misconduct – reinstatement sought – respondent contended applicant’s conduct constituted serious misconduct because it caused serious and imminent risk to health and safety or reputation of the employer – Commission satisfied valid reason for dismissal – found on balance dismissal was harsh – disproportionate to the gravity of the misconduct – dismissal unfair – remedy – reinstatement not appropriate – compensation appropriate – further submissions to be sought from parties with respect to s.392 of FW Act – directions to be issued. Renton v Bendigo Health Care Group
January 16, 2017
TERMINATION OF EMPLOYMENT – application to dismiss by employer – deed of settlement – ss.394, 587 Fair Work Act 2009 – application for relief from unfair dismissal – settlement reached at conciliation – terms of settlement document provided to parties by staff of Commission – two months later applicant contacted Commission enquiring as to status of application – applicant informed settlement reached at conciliation and matter closed – requested matter proceed to arbitration – stated in-principle agreement at conciliation was subject to terms of deed of release of which she was unhappy with – applicant also raised newly discovered documentation that she alleged cleared her of misconduct – respondent objected to matter proceeding as agreement reached – Commission found no evidence of applicant or representative raising any objections upon receipt of terms or in weeks immediately following – applicant only challenged terms two months later when request made for arbitration – more plausible explanation that applicant wished for matter to proceed to arbitration owing to newly discovered documentation – Commission not persuaded that agreement reached was only an in-principle agreement and subject to the parties reaching agreement on terms of a deed of release – satisfied that parties reached an agreement by way of a binding settlement at conciliation on 17 August 2016 – application dismissed on the basis that it has no reasonable prospects of success. Heap v Calvary Health Care ACT Ltd t/a Calvary Health Care Bruce
January 16, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Wesley Mission Hospitals and NSWNMA, ANMF Enterprise Agreement 2013-2016 (Agreement) – applicant represented member employed as Registered Nurse (RN) – when on night shift employee was the RN in charge of hospital comprised of three units – whether employee entitled to In Charge of Ward/Unit & Hospital Allowance (Allowance) in accordance with clause 12.4(a) of Agreement – Agreement provided for Allowance to be paid only when employee was in charge of one or more other nurses in the ward or unit in question – respondent contended employee was not eligible for Allowance because employee was not in charge of Enrolled Nurse (EN) in Alcohol and Drugs (AOD) unit – construction of Agreement – Golden Cockerel applied – Commission held Agreement and clause 12.4(a) had plain meaning and did not contain ambiguity – preferred evidence of employee – only direct evidence about what occurred on night shift – Commission found employee when on night shift was responsible for AOD unit and the EN working in it – entitled to Allowance – whether Commission had jurisdiction to order back payment of Allowance – held it was exercising private arbitration power – satisfied Agreement conferred power on the Commission to deal with issue of Allowance back payment – jurisdiction existed – parties directed to confer about orders Commission should make in respect of quantum of back payment and file proposed consent orders within 21 days. New South Wales Nurses and Midwives’ Association v Wesley Hospital Ashfield t/a Wesley Mission
January 16, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant involved in incident on way home from work in company vehicle – fellow employee in vehicle – applicant’s employment terminated with immediate effect following investigation – reinstatement sought – respondent contended dismissal was for a valid reason and not unfair – whether sufficient connection between out of working hours conduct and applicant’s employment – whether applicant’s conduct constituted misconduct – out of hours conduct must have a relevant connection to the employment relationship to be considered a valid reason for dismissal [Kedwell v Coal & Allied] – Commission satisfied relevant and sufficient connection – conduct took place in company vehicle with respondent’s details on while wearing shirt with company logo – conduct contrary to reasonable policy and instructions from respondent – misconduct found – valid reason for dismissal – dismissal procedurally fair – competing considerations as to whether dismissal was harsh – on balance dismissal not harsh, unjust or unreasonable – application dismissed. Iannella v Engie Fire Services Australia P/L t/a Engie Services
January 16, 2017
Nurses from two Adelaide hospitals are “appalled” by a decision to cut beds at the facilities, the Australian Nursing and Midwifery Federation says. The ANMF’s SA branch says nurses from the Royal Adelaide Hospital and the Queen Elizabeth Hospital will meet this week to consider industrial action over the bed closures. It says nurses believe the decision “flies in the face of patient demand” as some patients at both sites had recently been given care in corridors and treatment rooms because of a bed shortage.
