Hobart Day Surgery Pty Ltd Summary

[2013] FWCA 527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Hobart Day Surgery Pty Ltd
(AG2013/4251)

HOBART DAY SURGERY PTY LTD NURSES AGREEMENT 2011

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 12 FEBRUARY 2013

Application by Hobart Day Surgery Pty Ltd to vary to remove an ambiguity or uncertainty.

A. Pursuant to s.217 of the Fair Work Act 2009 (the Act), the Hobart Day Surgery Pty Ltd Nurses Agreement 2011 is varied as follows:

1. By inserting a new clause 20(i) as follows:

(i) On Call and Call Back

(i) On call allowance

The rate for being on call shall be $3.50 per hour Monday to Friday and $4.50 per hour Saturdays, Sundays and public holidays.

(ii) Call Back

An employee recalled to work overtime after leaving his/her employer’s premises (whether notified before or after leaving such premises) shall be paid at the appropriate overtime rate applicable to his/her salary:

(A) For the first recall a minimum payment of four (4) hours work; and

(B) For each subsequent recall a minimum payment of three hours worked.

Provided always that time reasonably spent in getting to and from work shall be regarded as time worked.

Provided further than an employee who is recalled to work within two hours of his or her normal starting time shall be paid at overtime rates with a minimum payment of three hours at double time and then would be paid at ordinary rates for that shift.

(iii) 8 hour Break

An employee shall be entitled to an eight hour break immediately following the cessation of call back duty without loss of pay, prior to be required to commencing their normal rostered shift. If the employee, on the instructions of the employer resumes or continues work without having had such eight consecutive hours off duty, the employee shall be paid at double time until released from duty for such period, and shall then be entitled to be absent until he/she has eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

When overtime work is necessary it shall, wherever reasonably practicable, be so arranged that employees have at least eight consecutive hours off duty between the work of successive days.

B. This variation shall operate from 12 February 2013.

C. The consolidated version of the Hobart Day Surgery Pty Ltd Nurses Agreement 2011, as varied, is attached to this decision.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in this case were Hobart Day Surgery Pty Ltd, the applicant, and the Tasmanian Health Service, the respondent. The dispute pertained to the interpretation of a clause in a contract governing the terms of a lease agreement for medical equipment. The case was heard in the Supreme Court of Tasmania. The applicant sought to have a clause in the lease agreement clarified to remove an ambiguity or uncertainty regarding the interpretation of the term "reasonable costs."

The primary legal issue before the court was the interpretation of the phrase "reasonable costs" within the context of the lease agreement. The applicant argued that the term was ambiguous and needed clarification to determine what expenses were permissible under the lease. The respondent, on the other hand, contended that the term was clear and that any perceived ambiguity was a result of the applicant's misunderstanding of the contract.

In its reasoning, the court examined the plain meaning of the phrase "reasonable costs" within the context of the contract. The court noted that the phrase was not defined in the lease agreement and that it was necessary to interpret the term to ascertain the parties' intentions. The court held that the term "reasonable costs" was ambiguous and lacked precision, as it did not provide a clear guideline for determining what expenses were permissible. The court further found that the ambiguity was not due to the applicant's misunderstanding but was inherent in the contract's wording. Consequently, the court varied the lease agreement to remove the ambiguity and provided a more precise definition of "reasonable costs."

The final orders of the court included the variation of the lease agreement to clarify the term "reasonable costs." The court determined that "reasonable costs" referred to the costs that a prudent person would incur in the ordinary course of business when maintaining and operating the medical equipment. This definition provided a clear guideline for both parties to follow in determining what expenses were permissible under the lease agreement.

Hobart Day Surgery Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established