Ballarat Health Services v Health Services Union
[2012] FCAFC 79
•7 May 2012
FEDERAL COURT OF AUSTRALIA
Ballarat Health Services v Health Services Union [2012] FCAFC 79
Citation: Ballarat Health Services v Health Services Union [2012] FCAFC 79 Appeal from: Health Services Union v Ballarat Health Services [2011] FCA 1256 Parties: BALLARAT HEALTH SERVICES v HEALTH SERVICES UNION File number: VID 1311 of 2011 Judges: NORTH, MCKERRACHER AND REEVES JJ Date of judgment: 7 May 2012 Date of hearing: 7 May 2012 Place: Melbourne Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 7 Counsel for the Appellant: Mr M McDonald with Mr G McKeown Solicitor for the Appellant: Workplace Legal Counsel for the Respondent: Mr H Borenstein SC with Mr C Dowling Solicitor for the Respondent: Slater & Gordon
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1311 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: BALLARAT HEALTH SERVICES
AppellantAND: HEALTH SERVICES UNION
Respondent
JUDGES:
NORTH, MCKERRACHER AND REEVES JJ
DATE OF ORDER:
7 MAY 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1311 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: BALLARAT HEALTH SERVICES
AppellantAND: HEALTH SERVICES UNION
Respondent
JUDGES:
NORTH, MCKERRACHER AND REEVES JJ
DATE:
7 MAY 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
NORTH J:
On 4 November 2011, Gray J determined that employees of the respondent engaged in mental health nursing in receipt of a commuted allowance who worked afternoon and night shifts on Saturday, Sunday and public holidays are entitled to shift allowances in respect of those shifts (Health Services Union v Ballarat Health Services [2011] FCA 1256). This conclusion involved the construction of the Ballarat Health Services Psychiatric Services Certified Agreement 1997 (the 1998 Agreement), which construction was accepted by the parties as applicable to the Victorian Psychiatric Services Certified Agreement 2000-2004 and the Victorian Psychiatric Services Certified Agreement 2004-2007.
Save for one argument, the arguments on appeal mirrored the arguments put to his Honour.
The appellant submitted that his Honour did not deal directly with an argument that, if cl 34.6.1 of the 1998 Agreement was read literally, it would involve an anomaly in that employees covered by cl 23.2.1 would receive shift allowances under the 1998 Agreement as well as continuing to receive shift allowances under the Victorian Health and Community Services (Psychiatric, Disability and Alcohol & Drug Services) Award 1995.
The respondent argued that cl 23.2.1 sets a minimum income maintenance for employees who transferred employment but did not receive the commuted allowance. So read, there is no anomaly. This argument should be accepted.
Otherwise, I agree with the conclusions of his Honour and with the substance of the reasoning which he applied to reach those conclusions.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 28 May 2012
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1311 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: BALLARAT HEALTH SERVICES
Appellant
AND: HEALTH SERVICES UNION
Respondent
JUDGE:
NORTH, MCKERRACHER AND REEVES JJ
DATE:
7 MAY 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
MCKERRACHER J:
I agree with the reasons and conclusions of the presiding judge.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 28 May 2012
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1311 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: BALLARAT HEALTH SERVICES
Appellant
AND: HEALTH SERVICES UNION
Respondent
JUDGE:
NORTH, MCKERRACHER AND REEVES JJ
DATE:
7 MAY 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
REEVES J:
I agree.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 28 May 2012
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