Western Australia’s Health Service Boards have welcomed five new members to aid their work in improving the WA public health system. Dr Amanda Boudville, a specialist in aged care and rehabilitation at St John of God Hospital, will work on the South Metropolitan Health Service Board.
August 14, 2017
ENTERPRISE AGREEMENTS – approval – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission approved the Sigma (Berrinba) Enterprise Agreement 2017 – appellant advanced five grounds of appeal, however it was only necessary for the Full Bench to deal with the first ground – the appellant contended that the Commission erred in approving the agreement in circumstances where the appellant was involved in the agreement making process as a bargaining representative, but had not been informed that Sigma had applied to the Commission for approval of the agreement – whether Sigma was required to serve its application for approval of the agreement on the appellant – relevant service rule required Sigma to serve a copy of its application for approval of the agreement on ‘each employee organisation that was a bargaining representative and any other employee bargaining representative of whom the applicant is aware’ – Full Bench found that permission to appeal should be granted in this matter, as the appeal raised important questions concerning the proper construction of rule 24(3) of the FWC rules – considered proper construction of the phrase ‘an employee organisation that was a bargaining representative for the proposed enterprise agreement’ in the context of s.183(1) of FW Act – Collinsville adopted – Full Bench of the view that rule 41(1) and Schedule 1 (Forms F16 and F17) of the FWC Rules require an applicant for approval of an enterprise agreement to serve a copy of the application (Form F16) and the employer’s statutory declaration in support of the application for approval (Form F17) on each employee organisation that was, at any time, a bargaining representative in relation to the enterprise agreement – Full Bench held that Sigma did not comply with that rule in connection with its application for approval of the agreement – the appellant was not aware that the application had been lodged until after the agreement was approved – as a result, the appellant was denied natural justice because it was not given an opportunity to make submissions as to why it should be heard in relation to the application for approval of the agreement – it follows that there was an error in the approval of the agreement – however, at first instance the Commission could not have had any knowledge, on the basis of the material before him, that the appellant was or had been a bargaining representative – in contrast, the material filed in the appeal indicates that Sigma knew that the appellant had been appointed as a bargaining representative for one employee who would be covered by the agreement – appeal upheld and decision at first instance quashed – matter referred to Asbury DP for rehearing. Appeal by National Union of Workers against decision of Gregory C of 30 May 2017 [[2017] FWCA 2940] Re: Sigma Company Limited t/a Sigma Healthcare
August 14, 2017
TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant had a number of periods of full-time employment with respondent in recent years most recently from 22 December 2016 – employed by respondent as a Cultural Heritage Officer (CHO) to perform CHO functions on land operated by Sandlewood’s client, QGC P/L (QGC), but traditionally owned by BCJWY traditional owner group – applicant a member of the Aboriginal Western Wakka Wakka group one of the five groups in BCJWY traditional owner group – QGC informed respondent they no longer required applicant’s services due to alleged breach of confidential information and ethical conduct policies – applicant submitted he could not do cultural heritage work on another native title holder’s land but could have done administration work in respondent’s offices – respondent submitted applicant could not be redeployed because respondent wasn’t working on any other Western Wakka Wakka land and there was no other work available for him – whether valid reason – Kool v Adecco and Tasports v Gee cited – if an employer can no longer pace its employee in the premises of a client it should exhaust all avenues to source other roles for the employee – Commission noted QGC’s alarmist approach to applicant’s actions and extraordinary conduct from their Senior Cultural Heritage Advisor in dealing with traditional owners – satisfied that respondent attempted to salvage applicant’s placement at QGC – satisfied was a valid reason for ending applicant’s employment at QGC as a CHO – not satisfied was a valid reason for dismissal from employment with respondent – found respondent failed to hold further discussions and failed to consult on other opportunities to continue employment – dismissal harsh, unjust and unreasonable – Commission ordered compensation of $2,400 less tax, plus superannuation at 9.5% of $2,400. Conlon v Sandlewood Aboriginal Projects Limited
August 14, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to Commission to deal with dispute under Ego Pharmaceuticals P/L and National Union of Workers Enterprise Agreement 2014 (Agreement) – dispute centred on meaning and application of clause 10.1 of Agreement in relation to night shift employees and their annual leave entitlements – Agreement provides shift penalty of 15% for afternoon shift workers and 30% for night shift workers – employees entitled to four weeks annual leave during which they will be paid ordinary pay – also provides employees will be paid annual leave loading of 17.5% of four weeks ordinary pay – annual leave loading is paid on the basis that ordinary pay means base rate of pay excluding shift penalties – effect of this is that day shift employees get paid 17.5% more than what they would have been paid if at work, an afternoon shift employee is paid 2.5% more than if at work and night shift employee is paid 12.5% less than if at work – NUW contended that night shift employees should be paid annual leave loading in addition to night shift penalty – submitted that Agreement has two separate terms: ‘base rate of pay’ and ‘ordinary pay’, and should therefore attribute different meanings – clause 10.1.1 uses the term ‘ordinary pay’ and not ‘base rate of pay’, so ‘ordinary pay’ should refer to what workers would ordinarily receive (inclusive of night shift loading) – Ego contended that Agreement expressly provides the annual leave loading to be payable on base rate and that ‘ordinary pay’ means base rate of pay for work performed before provision of any applicable loading, allowances or penalty rates – Commission considered the factor with the strongest influence over meaning to be attributed to ‘ordinary pay’ was practice which was in place at the time Agreement was put to vote – in absence of evidence, Commission determined the only objective fact was that Ego had been paying annual leave loading on base rate of pay – payment of annual leave loading on base rate of pay plus shift loading had not occurred in previous Agreements – Commission also noted that NUW had not sought to complain about payment of annual leave loading to afternoon shift employees – the fact that night shift employees were paid less whilst on annual leave than when working night shift may be an undesirable and unintended consequence, however Commission must not rewrite Agreement to remove such consequence – Commission held ‘ordinary pay’ in clause 10.1 of Agreement meant ordinary hourly rate of pay of employee without any shift loading or other penalty or loading included. National Union of Workers v Ego Pharmaceuticals P/L t/a Ego
August 11, 2017
Bendigo Health chief executive John Mulder has been sacked after an investigation by the state’s anti-corruption watchdog found he misappropriated thousands of dollars. The board of the health service, which runs Bendigo Hospital, met yesterday afternoon and unanimously decided to terminate Mr Mulder’s contract.
August 11, 2017
A s.394 (Application for unfair dismissal remedy) by Sue Fowler against Uniting Care Wesley Bowden Inc has been lost. Commissioner Hampton in Adelaide on 9 August 2017 heard the matter. The tribunal summary covers: Application for an unfair dismissal remedy – preliminary jurisdictional issues – whether dismissal within the meaning of the Act – whether forced resignation – whether deed of release signed by the parties acts as a bar to the application – investigation to be conducted – suspension implemented – resignation encouraged but real choice remained to have the investigation proceed – no dismissal at the initiative of the employer – no forced resignation – deed of release binding and complete bar to the application – application dismissed.
August 11, 2017
A nurse left psychologically devastated after she was repeatedly mistreated by her boss has won a payout of more than $1.4 million from the State Government. Mary-Rose Robinson argued she was unfairly blamed, humiliated, belittled and undermined for months by Cape York Health Service district chief executive Susan Turner. Ms Robinson consequently suffered a chronic mental health disorder and was forced to medically retire in May 2014. Justice James Henry, in the Supreme Court in Cairns, found the state was negligent and ordered it pay Ms Robinson, now 59, $1.46 million.
August 11, 2017
Epworth Foundation is set to defend a s.394 – Application for unfair dismissal remedy (Naicker).
