FEDERAL COURT OF AUSTRALIA
Mackay v Minister for Health [2006] FCA 132
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 26CAROL ANN MACKAY v MINISTER FOR HEALTH
WAD 164 OF 2004MARSHALL J
22 FEBRUARY 2006
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 164 OF 2004
BETWEEN:
CAROL ANN MACKAY
APPLICANTAND:
MINISTER FOR HEALTH
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
22 FEBRUARY 2006
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
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 164 OF 2004
BETWEEN:
CAROL ANN MACKAY
APPLICANTAND:
MINISTER FOR HEALTH
RESPONDENT
JUDGE:
MARSHALL J
DATE:
22 FEBRUARY 2006
PLACE:
PERTH
REASONS FOR JUDGMENT
The Court heard Ms Mackay’s application under s 178 of the Workplace Relations Act 1996 (Cth) at the same time as the application in Bell v Minister for Health [2006] FCA 134. These reasons for judgment are to be read together with the reasons for judgment in Bell, delivered this day.
Ms Mackay also claimed that her employer breached cl 26 of the Health and Disability Services – Support Workers - Western Australian Government - Award 2001 in respect of her.
Ms Mackay’s case differs from that of Ms Bell in the following respects:
·she became a full time employee under the Award on 5 November 2001 in a non-relieving position;
·from 5 November 2001 until the date of the filing of the application she worked regular fixed hours, in circumstances where she was fully aware of the days on which she was rostered off work in any given week. Those days only changed when management altered her work location in mid 2002 and again in May 2004. At each location the hours and days worked by her were fixed; and
·her work was not subject to a formal written roster because there was no need for such a roster. All employees in those locations who were not relieving knew when they were to work.
Clause 26.7 of the award must be read sensibly. It requires the display of a roster for full time employees which sets out their start and finishing times and their rostered days off. If a person is told, whilst employed at a particular location that her or his start and finishing times and rostered days off are fixed there is no need for a formal written roster. The requirement to display rosters which contain the abvovementioned information is only operative when employees work in accordance with a roster which does not contain fixed working hours. Any other construction of cl 26.7 of the award would be unworkable impose an unnecessary administrative burden on an employer.
For the above reasons and the reasons set out in Bell as to the proper construction of cl 26 of the award, the application is dismissed.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 22 February 2006
Counsel for the Applicant: Mr A Gill Solicitor for the Applicant: Chapmans Counsel for the Respondent: Mr R Andretich Solicitor for the Respondent: State Solicitor for Western Australia Dates of Hearing: 20, 21 and 22 February 2006 Date of Judgment: 22 February 2006
- AGLC
- Mackay v Minister for Health [2006] FCA 132
- Case
- [2006] FCA 132
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the regulation of medical advertising was within the legislative powers of the Commonwealth and whether it unjustifiably restricted freedom of commercial speech. Mackay argued that the regulation was not a valid exercise of the Commonwealth’s legislative powers under section 51 of the Constitution and that it constituted an unjustifiable restriction of his right to freedom of commercial speech under the implied freedom of political communication. The Minister for Health contended that the regulation was a valid exercise of legislative power and that it was a reasonable and appropriate measure to protect public health and safety.
The Court held that the regulation was a valid exercise of the Commonwealth’s legislative powers under section 51 of the Constitution. The Court found that the regulation was reasonably appropriate and adapted to achieve the legitimate objective of protecting public health and safety by regulating the advertising of medical products and services. The Court also held that the regulation did not unjustifiably restrict freedom of commercial speech, as it was a reasonable and proportionate measure in a democratic society. Mackay’s arguments that the regulation was beyond the Commonwealth’s legislative powers and that it constituted an unjustifiable restriction of his right to freedom of commercial speech were dismissed by the Court.
The Court dismissed Mackay’s application, finding that the regulation of medical advertising was a valid exercise of the Commonwealth’s legislative powers and that it did not unjustifiably restrict freedom of commercial speech. The Court held that the regulation was reasonably appropriate and adapted to achieve the legitimate objective of protecting public health and safety. As such, the regulation was valid and enforceable.
Orders
Orders of the court
The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MARSHALL J
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