An application by Health Services Union (s.318 – Application for an order relating to instruments covering new employer and transferring employees) is being considered by Commissioner Cribb in the Fair Work Commission 11 Exhibition Street Melbourne at 10.30am.
December 6, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – applications to deal with a dispute pursuant to the Bupa Care Services, NSWNMA, ANMF (NSW Branch) and HSU NSW Branch, New South Wales Enterprise Agreement 2013 (Agreement) – respondent introduced a new operating model – changes impacted part-time work patterns of two employees – dispute arose between the two employees and respondent – dispute unresolved – whether respondent entitled to give notice to first employee of change to roster without reaching written agreement – whether letter given to second employee outlining new work arrangements complied with requirements of the Agreement – applicant contended part-time employment and general rostering clauses in the Agreement conflicted and part-time clause should prevail – part-time employment clause required written agreement to vary number of hours worked and rostering arrangements – respondent contended its’ ability to change a roster arose under general rostering clause and contract of employment – contended neither restricted its’ ability to change roster after appropriate consultation – contended written agreement requires minimum hours and rostering arrangements – construction of Agreement – Golden Cockerel applied – Commission satisfied objective of relevant clauses in the Agreement was to give part-time working arrangements predictability and certainty – found Agreement had plain meaning and not ambiguous – found part-time agreements without days of work or starting and finishing times do not achieve predictability and certainty – found respondent not able to give first employee notice of change to roster without written agreement – found terms in second employee’s work arrangements letter not compliant with the Agreement – dispute determined. New South Wales Nurses and Midwives’ Association v BUPA Care Services P/L
December 6, 2016
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under HACSU Department of Human Services Disability Services Enterprise Agreement 2012-2016 – applicant worked for Department of Health and Human Services (DHHS) as a Disability Development and Support Officer on casual basis – was subject to various performance and disciplinary matters – suspended with pay whilst allegations were investigated – restrictions placed on work upon returning – applicant claimed the need to be paid the difference between average pay calculated on the basis of restricted work and average pay prior to restrictions being put in place – claimed that respondent should have chosen a 12 week period where no restrictions were imposed to calculate average salary – respondent claimed that shifts offered, reflected the needs of DHHS – respondent gave applicant a level of expectation of shifts and future work – Commission satisfied that DHHS had duty of care to residents and this must be paramount in allocation of work with residents – satisfied that Agreement does not guarantee casual employee particular shifts, types of duties or income – satisfied that DHHS is entitled to limit the shifts offered to applicant in the interest of running its organisation and meeting its broader obligations – applicant not entitled to a higher rate of pay during stand-down. Morag v Department of Health and Human Services
December 6, 2016
GENERAL PROTECTIONS – extension of time – ss.365, 366 Fair Work Act 2009 – application to deal with contraventions involving dismissal lodged six minutes out of time – whether exceptional circumstances exist [Nulty] – reason for delay by applicant included lodgement difficulties – applicant attempted to lodge via eFiling – claimed she experienced problems with the Commission website particularly when she tried to pay her lodgement fee – Commission’s NSW State Manager confirmed awareness of technical issues – held the failure of the Commission’s website delayed the applicant’s application – application only six minutes late – Commission was satisfied exceptional circumstances existed – extension of time granted. Perrett v Teeth Health Life Dental t/a THL Dental (Teeth Health Life)
December 6, 2016
ENTERPRISE BARGAINING – single interest employer authorisation – s.248 Fair Work Act 2009 – application for single interest employer authorisation concerning new enterprise agreement to cover employees in health and allied services, management and administrative services employed by employers specified in application – application specified 86 employers intended to be covered by new enterprise agreement – employers involved in provision of public health services and specified in Declaration made by Minister under s.247 of FW Act – Commission satisfied employers freely agreed to bargain together – satisfied no coercion – satisfied employers specified in application also employers specified in Ministerial Declaration – single interest employer authorisation made. Victorian Hospitals’ Industrial Association
December 6, 2016
TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as Media/Communications Advisor – applicant’s role made redundant through organisational restructure – applicant reapplied and interviewed unsuccessfully for new role – claimed dismissal was not genuine redundancy as new role was substantively similar to applicant’s previous role – Commission considered s.389 of FW Act – satisfied that applicant’s role was no longer required – Honeysett and Pykett considered – satisfied it was not reasonable for applicant to be redeployed to new role – found applicant did not understand new requirements of role and re-training would not be effective – Commission found dismissal was genuine redundancy – application dismissed. Wardley v Australian Red Cross
December 6, 2016
Advantaged Care (Georges Manor) has succeeded in having Lyn Tovey’s 19 per cent whole person impairment reduced to 11 per cent in an appeal to the NSW Workers Compensation Commission over the medical assessment of Dr Chang.
December 6, 2016
Michelle De Ronchi knows she has her work cut out as the new head of the home care division of retirement services giant St Ives. The 47-year-old former nurse has taken the job after a deal that had RAC WA, which owns St Ives, spin out its home care business as a joint venture with private equity powerhouse Quadrant.
