Bell v Minister for Health - [2006] FCA 134

FEDERAL COURT OF AUSTRALIA
Bell v Minister for Health [2006] FCA 134
INDUSTRIAL LAW – application under s 178 of the Workplace Relations Act 1996 (Cth) for imposition of penalty for award breaches – award interpretation – whether award rostering requirements applicable – no question of principle
Workplace Relations Act 1996 (Cth) s 178
Health and Disability Services – Support Workers - Western Australian Government - Award 2001 cl 26
JILLIAN BELL v MINISTER FOR HEALTH
WAD 165 OF 2004
MARSHALL J
22 FEBRUARY 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 165 OF 2004

BETWEEN:

JILLIAN BELL
APPLICANT

AND:

MINISTER FOR HEALTH
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

22 FEBRUARY 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 165 OF 2004

BETWEEN:

JILLIAN BELL
APPLICANT

AND:

MINISTER FOR HEALTH
RESPONDENT

JUDGE:

MARSHALL J

DATE:

22 FEBRUARY 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

Ms Jillian Bell has a grievance with her employer, the Minister for Health in the State of Western Australia. Her grievance concerns her treatment by management at the Princess Margaret Hospital with respect to her rostering arrangements. She has applied under s 178 of the Workplace Relations Act 1996 (Cth) for a penalty to be imposed on her employer for breaches of cl 26 of the Health and Disability Services – Support Workers - Western Australian Government - Award 2001.
Ms Bell commenced employment at the hospital as a casual cleaner/ patient care assistant on 12 June 2002. From 28 July 2002 until 23 November 2002 she was engaged in a cleaning position for 70 hours work per fortnight. The basis of this engagement was not the subject of any evidence before the Court. On 25 November 2002 she accepted a written offer of permanent employment as a cleaner. On 16 June 2003, Ms Bell accepted an offer of employment as a Patient Care Assistant Reliever. This position involves Ms Bell working shifts as a patient care assistant, relieving persons who occupy that substantive classification and who are not available for duty at particular times.
When engaged as a cleaner Ms Bell worked an average of 70 hours per fortnight. Whilst engaged as a relief patient care assistant, Ms Bell works an average of 80 hours a fortnight.
The award
The award applied to Ms Bell’s employment at the hospital at all material times. Clause 7.12 of the award defines a casual employee as “an employee engaged for a period of less than one week.”
Clause 12.1.1 of the award defines a full time employee as one engaged for an average of 38 ordinary hours per week. Under cl 12.2.2 a regular part time employee is one employed to work less than an average of 38 hours per week. In her cleaning position, Ms Bell (according to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 134
Decision Date: 22 FEBRUARY 2006

CaseChat Overview and Summary

In Bell v Minister for Health, the plaintiff, Ms Bell, brought a claim against the Minister for Health, represented by the respondent, regarding alleged breaches of award provisions concerning rostering in her employment as a health care worker. Ms Bell argued that the changes to her rostering arrangements breached certain clauses of the relevant award. The matter was heard in the Fair Work Commission, where Mr Gill represented the respondent. During the proceedings, it was conceded by Mr Gill that there was no evidence to suggest that the changes to rostering arrangements were not made with the intention of improving productivity, efficiency, and cost-effectiveness, as outlined in clause 26.4.1 of the award. Additionally, it was established that clauses 26.4.2 and 26.4.3 were contingent upon clause 26.4.1 and could not be breached independently.

The court had to decide whether there had been any breach of the award provisions concerning rostering arrangements. The court found that no breach had been made out by Ms Bell. It was concluded that clause 26 of the award did not apply to Ms Bell before she became a full-time employee on 16 June 2003. Furthermore, from December 2003 until the filing of the application, Ms Bell was employed with fixed hours and did not require a roster. The court also noted that the relief position she occupied as a full-time employee between June and December 2003 was not one where it was practicable for an employer to make predictions about variations to work arrangements, thus the award provisions concerning rosters could not be said to have literal application in this context.

In conclusion, the Fair Work Commission dismissed the application, finding no breach of the award provisions. However, the court suggested that the hospital should consider Ms Bell's grievance concerning her two sick days being treated as rostered days off, and attempt to make some form of recompense to address her grievance and improve her morale as an employee. The respondent's application for costs was also dismissed.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Mr Gill conceded that there was no evidence before the Court to show that any changes to rostering arrangements were not designed to improve productivity, efficiency and cost effectiveness as referred to in cl 26.4.1. The provisions of cl 26.4.2 and cl 26.4.3 are facilitative and flow on from cl 26.4.1. No independent breach of them has been established.Conclusion No breach of the award has been made out by Ms Bell. In summary:·as conceded by her counsel, cl 26 did not apply to Ms Bell before she became a full time employee on 16 June 2003;·from December 2003, until the filing of the application, Ms Bell was employed in a manner in which she had fixed hours and did not require a roster·the relief position which she occupied as a full time employee between June and December 2003 was not one in which it is practicable for an employer to make predictions about variations to work arrangements, such that it could be said that the award provisions concerning rosters were intended to have literal application. It must be remembered that the award was intended to apply to the practical industrial relations circumstances which apply in the large number of health care facilities which are bound by it.Postscript When originally filed the application sought that a penalty be imposed on the respondent for breach of a certified agreement and not the award. Leave was granted for the application to be amended in Court to permit Ms Bell to raise the question whether the award had been breached. From hearing her evidence it seems that the issue which led Ms Bell to raise a complaint about rostering occurred prior to the time when cl 26 of the award applied to her. That is, when she was not a full-time employee, under the award. She was concerned about having two sick days treated as rostered days off. Her grievance in that regard appears to be a genuine one and one which has not been properly addressed. Although the Court has found no breach of the award has been committed by the respondent, in order for Ms Bell to put this issue behind her, the hospital should attempt to carefully consider the circumstances of her grievance concerning her two sick days. It should attempt to make some belated recompense for that treatment. For example, it could accord her some form of preferential treatment in relation to the taking of future leave applications in order to redress her grievance with the hospital and to assist her to achieve the appropriate morale needed to be a content worker in the hospital’s workforce.Costs Counsel for the respondent, Mr Andretich sought costs pursuant to s 347(1) of the Act. I refused that application. At the time the application was filed, it raised alleged breaches of two clauses of a certified agreement. Mr Andretich conceded that, in respect of one of those clauses he could not sustain an argument that the alleged breach was not arguable given the affidavit evidence of Ms Bell which accompanied the application as originally filed.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 165 OF 2004

BETWEEN:	JILLIAN BELL APPLICANT
AND:	MINISTER FOR HEALTH RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	22 FEBRUARY 2006
WHERE MADE:	PERTH

JUDGE:	MARSHALL J
DATE:	22 FEBRUARY 2006
PLACE:	PERTH