ENTERPRISE AGREEMENTS – varying agreement – s.217 Fair Work Act 2009 – application by Australian Nursing and Midwifery Federation to vary the GEO Care Australia Nurses (Victorian Prisons) Enterprise Agreement 2013 (the agreement) to remove an ambiguity relating to shiftwork and overtime – application opposed by respondent employer, Correct Care Australasia P/L – applicant submitted clauses 24 and 23.3 of agreement contain ambiguity – applications under s.217 involve two-step process, the first step in which is ascertaining whether there is an uncertainty or ambiguity – Commission not satisfied clause 24 ambiguous or uncertain – first part of clause defines shiftwork, and second part of clause sets out basis on which shifts can be worked – jurisdictional prerequisite not made out – Commission not satisfied clause 23.3 ambiguous or uncertain – overtime provisions clear – jurisdictional prerequisite not made out – application dismissed. Australian Nursing and Midwifery Federation v Correct Care Australasia P/L
October 17, 2017
TERMINATION OF EMPLOYMENT – contractor or employee – s.394 Fair Work Act 2009 – jurisdictional objection to application for unfair dismissal remedy – respondent asserted that applicant was not an employee but engaged pursuant to a contract for service – in considering whether applicant an employee or contractor Commission considered facts against the indicia outlined in Kimber – overwhelming evidence that character of relationship was one of contracting – jurisdictional objection upheld – application dismissed. Hinds v Barcoo Retirement Village Incorporated
October 17, 2017
TERMINATION OF EMPLOYMENT – misconduct – performance – ss.390, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant, a Finance Manager, was dismissed after preparing incorrect financial reports and failing to send essential return to national regulator of charities by deadline – Commission found valid reason for dismissal – applicant’s performance caused serious damage to respondent’s business – although dismissed for misconduct, applicant was guilty of poor performance – no satisfactory evidence of warnings – weight of finding diminished by applicant’s unwillingness to accept responsibility, which meant attempts to improve her performance would probably have been unsuccessful – Commission found dismissal was unfair, but only to extent that applicant should have been afforded notice of dismissal – applicant was dishonest about qualifications – at least part of poor performance was due to applicant being ‘out of her depth’ in role – if applicant had been honest, she might never have been appointed to position – compensation order inappropriate. Valenzuela v Spectrum Community Focus Limited t/a Spectrum Community Focus
October 17, 2017
An aged care worker who allegedly grabbed a teenage colleague by the throat and said he could kill her after a dispute over biscuits has said the girl fabricated the accusations out of jealousy. Lakshman Senanayake, 68, is accused of assaulting his 17-year-old co-worker during an argument at a nursing home in the north Canberra suburb of Page, where they worked. The alleged victim told the ACT Magistrates Court Mr Senanayake asked her if she had checked the biscuit supply in the home’s respite care section at breakfast time. When she replied that she had not, he allegedly became furious. The girl said she felt pressure on her throat and pushed him away with both hands. “I said ‘you’ve gone too far this time’ and he said ‘sorry darl’,” she told the court. She said she then ran down the corridor to seek help. In a police interview played to the court, Mr Senanayake denied the allegations, claiming he only touched her hand. He told police his colleague had lied about the incident because she was jealous of him and wanted to cause trouble. Under cross examination the teenager denied lying about the alleged attack, or that she had been drinking a liquid out of the fridge and gesturing at Mr Senanayake when he spoke to her. The case will return to court in December.
October 17, 2017
The ACT Health Directorate has a brace of s.739 (Application to deal with a dispute) before Deputy President Kovacic in his ACT chambers (Hays/Jones).
October 17, 2017
The Queensland Nurses and Midwives’ Union of Employees and Domain Aged Care (QLD) Pty Ltd & DPG Services Pty Ltd have a (s.372 – Application to deal with other contravention disputes) listed for hearing by Commissioner Simpson in his Brisbane chambers today.
October 17, 2017
A s.185 (Enterprise agreement) application by the Friendly Society Medical Association Limited T/A National Pharmacies for its National Pharmacies Distribution Centre Store Replenishment Employees Enterprise Agreement 2017 has been approved by Deputy President Masson in Melbourne on 16 October 2017.
October 17, 2017
Coronial inquests will scrutinise practices at the Canberra Hospital after four patients died by suicide on its campus in less than two years. Three of those people were patients in the hospital’s mental health wards and one was a patient in a medical assessment ward.
